M (T) v K (Z), 2021 ABQB 588

Court of Queen’s Bench of Alberta Citation: M (

T) v K (Z), 2021 ABQB 588 Date: 20210727 Docket: 4803 168033 Registry: Edmonton Between: T M Plaintiff/Respondent - and - Z K Defendant/Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Identification Ban – See the Family Law Act ,

section 100. By Court Order, no person shall publish or broadcast information that may identify the children involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the

Honourable Madam Justice Bonnie L. Bokenfohr _______________________________________________________ I. Introduction [ 1 ] The primary issue in this application is whether child and spousal support arrears should be retroactively reduced for the period of time that the Payor Father (the Father) was incarcerated and unable to earn income. [ 2 ] During the time that the Father was incarcerated child and spousal support arrears of $146,420.00 accrued based on an income of $83,229.11. The Director of Maintenance Enforcement (Director) seeks to recover a significant portion of the arrears.

The remaining arrears are owed to the support recipient (the Mother) and include both child and spousal support. Both the Mother and Director oppose any retroactive adjustment of arrears on the basis that the Father must not escape the consequences of his crime and should be responsible for paying the monies he would have paid had he not been incarcerated. [ 3 ] I am satisfied that the child support arrears should be retroactively adjusted to reflect the Father’s actual income during incarceration.

This is consistent with the legal framework set out by the Supreme Court of Canada in Colucci v Colucci , 2021 SCC 24 ( Colucci ). Child support is an income-based regime. It is the purview of the criminal justice system to determine the appropriate punishment for criminal offences.

Respect for the role of a sentencing judge and their responsibility to impose a fit sentence demands that the public’s reprobation of a particular offence not extend to blurring the lines between a payor’s sentence and child support obligations. [ 4 ] The quantum of spousal support payable during incarceration should also be retroactively adjusted to $0. This decrease does, however, impact the duration of time that spousal support will be payable. [ 5 ] This case highlights a significant public policy issue.

Child victims of abuse, whether it be sexual, physical, or otherwise, may be reluctant to come forward if doing so will be financially devastating for their family. Children should not be placed in a position of having to choose between their safety and their financial wellbeing and that of their family. Children should not have to worry about the financial consequences of reporting abuse. This is an issue that demands government attention and action. [ 6 ] The Applicant in this case is the Father. He has three children with the Mother. The Mother also has children from a previous relationship.

The Father was convicted of sexual offences against his step daughter. His conviction and the facts related thereto are relevant to his application. There is a publication ban with respect to any identifying information of the victim in the criminal matter. As such, I will be taking care in this case not to disclose any information that would identify the family. The Payor Father will be referred to as the Father. The Respondent, and Payee, will be referred to as the Mother. II. Background [ 7 ] The parties began living together in 2001 and married in April 2006.

They had three children born February 2001, May 2002, and October 2007. When the parties met, the Mother already had three young children, including a daughter who was six years old. [ 8 ] During the marriage the Mother did not work and was primary caregiver for the children. The Father supported the family through his employment as a carpenter except for periods of time that he was unemployed and the family relied on social assistance. It is undisputed that the Father used cocaine regularly. [ 9 ] In 2007 the Father began having sex with his then 15 year old step daughter.

This occurred for approximately three years. A pregnancy resulted. The Father also supplied his step daughter with crack cocaine. [ 10 ] The Father and Mother separated in May 2012. The Mother has not been employed since the date of separation and has received financial assistance from the government and relied on the food bank and other community supports. [ 11 ] The step daughter did not disclose the sexual abuse until 2013. The Father was charged and on October 30, 2015, pled guilty to sexual exploitation. As part of his guilty plea he admitted to doing drugs with his step daughter and having sex with her.

He also confirmed that he knew she had become pregnant and placed the baby for adoption. [ 12 ] On March 18, 2016, the Father was sentenced to seven years’ incarceration. The sentencing Justice held that the facts of the case were extremely egregious including the breach of trust in the step parent/child relationship, the length and nature of the sexual relationship, the pregnancy, the introduction and use of crack cocaine, and the Father’s callous and selfish treatment of the victim both before and after the birth of the baby. [ 13 ] In May 2014 the Mother filed a Statement of Claim for Divorce.

In August 2014 the Father consented to an Order requiring him to pay child support based on his 2013 income of $83,229.11. [ 14 ] On October 20, 2015, the Mother brought an application for spousal support. The Father did not appear at the application. The Court ordered the Father to pay spousal support in the amount of $1,000 per month beginning October 1, 2015, until further Order of the Court. The Court also ordered the Father to pay 100% of

section 7 expenses. [ 15 ] The Father began his incarceration on February 18, 2016.

[ 16 ] In March 2016 the Mother noted the Father in default in the divorce action. The Mother also submitted a Request for Divorce Without Oral Evidence. This is commonly referred to as a desk divorce. Accompanying the application was an Affidavit sworn by the Mother stating that the Father’s income was $83,229.11 and providing a last known address for the Father in Calgary.

The Affidavit did not include any information about the criminal proceedings, the Father’s guilty plea and conviction, nor the fact that he was incarcerated at the time the Affidavit was sworn and the Request for Divorce submitted. [ 17 ] A Divorce Judgment and Corollary Relief Order (Without Oral Evidence) was issued on May 19, 2016. The Judgment identified the Father’s guideline income as being $83,229.11 and ordered that he pay: • child support in the amount of $1,564 per month commencing on September 1, 2014, and continuing until further Order of the Court; • 100% of

section 7 expenses; and • spousal support in the amount of $1,000 per month commencing October 15, 2015, until further Order of the Court. [ 18 ] The Father was conditionally released from prison in July 2018. He had not received a copy of the Divorce Judgment while he was incarcerated and did not receive one until he requested a copy from the Court after his release from prison. [ 19 ] At the time of his incarceration the Father owed child and spousal support arrears of $28,928.24. He did not have income during his incarceration.

While he was in prison arrears continued to accrue according to the Divorce Judgment based on his pre- incarceration 2013 income. At the time of his release the Father had accumulated child and spousal support arrears of $146,420.

Because the Mother has received income support from the Government of Alberta, a significant portion of the arrears are owed to the Crown. [ 20 ] After his release from prison the Father made payment arrangements with the Maintenance Enforcement Program (MEP) to pay $500 per month and in December 2019 brought this application to: • Vary child support retroactive to the date of his incarceration in February 2016; • Vary spousal support retroactive to the date of his incarceration in February 2016 and terminate ongoing spousal support; • Determine which children remain children of the marriage for the purpose of child support; and • Direct ongoing child support for the remaining children of the marriage. [ 21 ] The Father takes responsibility for the arrears that he accumulated prior to incarceration. [ 22 ] After his release from prison the Father did not find immediate employment.

In August 2019 he started a carpentry business. He anticipates that his yearly income will be approximately $60,000. The Mother continues to rely on government financial assistance. [ 23 ] At the time of the hearing of the Father’s application, of the three children that the Father and Mother had together, one of the children was over 18, one of the children was about to turn 18, and one child clearly remained a child of the marriage. III.

Analysis Retroactive adjustment of child support [ 24 ] The Father argues that the child support payments set out in the Divorce Judgment should be retroactively adjusted based on his actual income for the years 2016 to 2019. This will result in no support being payable for the years 2016 until after his release from prison and when he was able to regain employment in September 2019.

He also argues that the arrears should be cancelled on the basis that he is not currently able to pay the amount of arrears owing nor will he have the ability to pay them in the future. [ 25 ] The Mother is opposed to any retroactive adjustment of child support. She argues that the accumulation of arrears is a natural consequence of incarceration and an aspect of the punishment imposed. Relieving the Father of his legal obligation to support his family because he committed a crime that represents a profound breach of trust for the family is not a just outcome; it offends decency, common sense, and fairness.

With respect to the Father’s argument that the arrears should be forgiven because of a current and future inability to pay, the Mother argues that the Father does have an ability to pay the arrears that accumulated while he was in prison and the evidence before the Court supports a finding that he will continue to be able to pay in the future. [ 26 ] As a significant portion of the arrears are owed to the Crown, the Director also takes a position on the application as it relates to the variation or elimination of arrears owing to the Crown. The Director opposes any variation or elimination of arrears.

The Director also argues that the accumulation of the arrears was a natural consequence of the incarceration and aspect of the punishment. This is especially so given that the crime was committed against the Father’s step daughter. Further, the Director argues that the Father had the opportunity to apply for a variation of the support orders prior to his incarceration as he was aware of the criminal charges and the fact that they would need to be addressed.

Finally, the Director argues that the Father has income through his carpentry business and has the ability to pay the arrears. [ 27 ] When a payor brings an application seeking to be relieved of the obligation to pay child support arrears there two distinct applications available. One is an application to retroactively decrease child support to reflect a past reduction in income. This is commonly referred to as a variation application.

The other is an application to relieve the payor of the obligation to pay the arrears on the basis that the payor is currently unable to pay and will be unable to do so in the future. In such an application the arrears reflect the proper amount of support owing but the payor failed to make the payments as they became due and is now asking for the arrears to be

reduced or forgiven because of the payor’s present financial hardship. This is commonly referred to as an application to rescind arrears. [ 28 ] An application to vary arrears and an application to rescind arrears are two separate and distinct applications that require different analysis. It is not uncommon for both applications to be brought at the same time. It is also not uncommon for the analysis to become muddied as between the two.

Care must be taken to ensure that the proper analysis is applied to each application. [ 29 ] The Supreme Court of Canada recently clarified the law with respect to both types of applications and clearly set out the legal framework to be applied in applications by a payor to retroactively decrease support to reflect a past reduction in income in Colucci .

The decision of the Court confirms and reinforces that the child support regime is an income-based regime that ties support to a payor’s fluctuating income. [ 30 ] Colucci provides the following framework for situations in which the payor experienced a material drop in income that affected their ability to make payments as they became due: • A payor seeking a downward retroactive change must first show a past change in circumstance. This will often be a material change in income.

The decrease in income must be “significant and have some degree of continuity, and it must be real and not one of choice” (para 61). • The payor must disclose sufficient reliable, accurate, and complete evidence for the court to determine when and how far their income fell, and to ascertain whether the change was significant, long lasting, and not one of choice (para 62). • Once the applicant establishes a change in circumstances a presumption is triggered that support will be varied back to effective notice, up to three years before formal notice (paras 71 and 80). • Effective notice must include sufficient information to allow the recipient to assess the situation, adjust expectations, make necessary changes to lifestyle and expenditures, and make informed decisions (para 88). • The period of retroactivity is presumed to extend no further than three years before the date of formal notice (para 91).

The court retains the discretion, however, to depart from the presumptive date of retroactivity where “the result would otherwise be unfair in the circumstances of a particular case” (para 96). • If a retroactive variation is appropriate, the Guidelines apply in determining the amount of child support (para 109). [ 31 ] Applying the framework set out by the Supreme Court in Colucci I am satisfied that a retroactive adjustment of child support to the date of the Father’s incarceration is appropriate. [ 32 ] The Father’s incarceration is clearly a change in circumstance.

While incarcerated he was unable to earn income through employment. The Father had no assets capable of earning income while he was incarcerated. His incarceration was for a lengthy period of time, it was not “trivial or short lived” ( Colucci at para 61 ). [ 33 ] The Mother had effective notice as early as October 2015. She was aware that the Father had been charged criminally. He pled guilty in October 2015.

This provided the Mother with sufficient information to realize that the Father’s sentence would include a jail sentence of some significance and that he would therefore not be earning income. [ 34 ] Having established a change in circumstance the presumption is that support will be varied back to effective notice, up to three years before formal notice. The Father gave formal notice by way of filing this application in December 2019. The presumptive retroactive adjustment is therefore to December 2016.

I am satisfied that it is fair in the circumstances of this case to depart from the presumption and extend the date of retroactivity to February 2016, the date that the Father was incarcerated. [ 35 ] The Father provided evidence that in early 2017, while in jail, he attempted to retain legal counsel to assist him with his family law matter. Although the evidence is clear that legal counsel was assigned by Legal Aid, it is also clear that obtaining legal assistance while incarcerated proved challenging.

The assigned lawyer became unable to continue as counsel and there do not appear to be any further steps taken by Legal Aid to assign a new lawyer. While no steps were taken to advance a variation application, the Father did make some efforts after incarceration to do so. [ 36 ] Upon his release in July 2018 the Father made payment arrangements with MEP. There is a delay between the time of his release from prison and his commencement of legal proceedings. The delay is understandable in the circumstances of this case. His evidence is that he had difficulty regaining employment and needed to update his skills.

He eventually started his own carpentry business and was able to earn income from the business in its first year. The evidence of the Father was that his focus was on regaining employment.

The delay in retaining legal counsel to pursue legal proceedings is understandable and was not significant in the context of the circumstances overall. [ 37 ] The circumstances surrounding the desk application for the Divorce Judgment and Corollary Relief Order (Without Oral Evidence) are also relevant to the assessment of whether it is fair in the circumstances of this case to depart from the presumption and extend the date of retroactivity to the date that the Father was incarcerated. [ 38 ] In February 2016 there were two Orders in place, a Consent Order from August 2014 requiring the Father to pay child support based on his 2013 income of $83,229.11, and an Order from October 2015 requiring the Father to pay spousal support in the amount of $1,000 per month beginning October 1, 2015, until further Order of the Court.

The Father did not attend the October court date and the Order was issued in his absence. I note that the spousal support application proceeded five days after the Father’s counsel withdrew as counsel of record and 10 days before the Father pled guilty to his criminal charges. I also note that the Father had participated in the family proceedings prior to his criminal matter proceeding. [ 39 ] The Father began his incarceration on February 18, 2016.

[ 40 ] In March 2016 the Mother noted the Father in default in the divorce action. When the Statement of Claim was received in 2014 counsel for the Father asked the Mother’s counsel at the time not to note the Father in default without notice. The Mother’s counsel confirmed that he would not note the Father in default without prior reasonable notice. The evidence of the Father was that he did not receive notice and, in fact, did not receive a copy of the Divorce Judgement until he requested it from the courthouse after his release from prison.

The Mother’s evidence was that she was informed by her lawyer that the Father had been notified. [ 41 ] After noting the Father in default, the Mother’s counsel submitted a desk application for the Divorce Judgment and Corollary Relief Order (Without Oral Evidence). Accompanying the application was an Affidavit sworn by the Mother stating that the Father’s income was $83,229.11 and providing a last known address for the Father in Calgary.

The Affidavit did not include any information about the criminal proceedings, the Father’s guilty plea and conviction, nor the fact that he was incarcerated at the time the Affidavit was sworn and the Request for Divorce submitted. [ 42 ] This Court issued a Divorce Judgment and Corollary Relief Order (Without Oral Evidence) on May 19, 2016.

Relying on the Mother’s Affidavit and the fact that the Father had been Noted in Default, the Judgment identified the Father’s guideline income as being $83,229.11. [ 43 ] The information provided to the Court for the purposes of obtaining the Divorce Judgment and Corollary Relief Order was not the most up to date information available to the Mother or her counsel. When the desk divorce was submitted the Court should have been advised of the Father’s criminal charges and his guilty plea.

The evidence of the Mother is that she was not aware that the Father was incarcerated when she swore her Affidavit and that she did not intend to mislead the Court. [ 44 ] At the very least, the Mother was aware of the criminal charges and the guilty plea.

This information should have been brought to the attention of the Court in order that the Court could consider the appropriateness of the Corollary Relief Order requiring child support to be paid on an income of $83,229.11 and indefinite spousal support of $1,000. [ 45 ] I am left with many questions as to why counsel for the Mother proceeded as they did and why the most current information about the Father’s circumstances and anticipated income of the Father was not put before the Court.

I note that counsel for the Mother at this proceeding is not the same counsel that acted on behalf of the Mother in filing the Statement of Claim and obtaining the Divorce Judgment and Corollary Relief Order. It may be that counsel for the Mother at the time was unaware of the Father’s circumstances but it is difficult to imagine how this could be likely. The spousal support application, the Father’s guilty plea, the Father’s incarceration, the desk divorce application and Mother’s Affidavit in support, and the Father’s sentencing all occurred within a six month period between October 2015 to March 2016.

This would have been a period that was extremely upsetting and a time of extreme upheaval. [ 46 ] The Law Society of Alberta Code of Conduct provides that “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and respect” (at 5.1-1).

The Commentary to the Code elaborates as follows: When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client’s case so as to ensure that the tribunal is not misled.

This situation creates an obligation on the lawyer present to prevent a manifestly unjust result by disclosing all material facts known to the lawyer that the lawyer reasonably believes are necessary to an informed decision (Commentary, 5.1-1 at para 8). [ 47 ] While I am unable to say with any certainty what the outcome of the desk divorce application would have been if all the material facts had been put before the Justice, the circumstances surrounding the divorce application and how it was obtained weigh in favour of finding that it is fair in the circumstances of this case to depart from the presumption and extend the date of retroactivity to the date that the Father was incarcerated.

Further, whether the Court would have made a different Order if it had all material facts before it or not, the Mother was aware of the Father’s circumstances and his impending loss of income and was therefore able to plan for the reduction in support ( Colucci at para 99 ). [ 48 ] Given my finding that the arrears should be retroactively reduced it is not necessary for me to decide whether the arrears should be cancelled on the basis that the Father is not currently able to pay the amount of arrears owing nor will he have the ability to pay them in the future.

If a finding on this aspect of the Father’s application were required I would find that the Father had failed to establish that he has a current and future inability to pay. Despite his history of drug use and incarceration the Father established a successful carpentry business after his release from prison. While the amount of the debt is large I am satisfied that if the arrears remained owing, an appropriate repayment

schedule could be developed that would allow the Father to continue to meet his needs while paying down the arrears. This is especially so given that the children are older and his child support obligations will decrease as time moves on.

The Impact of Incarceration on the Colucci analysis [ 49 ] Both the Mother and the Director argue that the arrears should not be retroactively reduced as their accumulation is a natural consequence of incarceration and an aspect of the punishment imposed. [ 50 ] Colucci does not address whether a different analysis should be used when the payor is seeking a retroactive adjustment because their income fell as a result of incarceration.

The only reference to incarceration in Colucci is in the context of the discussion of what will qualify as “effective notice”: “In some cases, such as where the payor is incarcerated or suffers a serious health setback, clear communication may be sufficient to meet the requirements of effective notice” (para 89). [ 51 ] Is incarceration as the reason for a reduction in income relevant to the Colucci analysis? [ 52 ] Certainly incarceration is relevant to the first step in the Colucci analysis.

The first step in the Colucci analysis is whether the payor has met the threshold of establishing a past material change in circumstances. A period of incarceration in and of itself may not

meet this threshold. The reduction in income must be a material decrease that has some degree of continuity.

The assessment of whether a period of incarceration will meet this threshold will be fact specific and necessarily include consideration of the length of the incarceration, the payor’s income, and a review of the payor’s full financial circumstances including assets . [ 53 ] Aside from the analysis of whether the period of incarceration meets the threshold of establishing a past material change in circumstances, is the fact of incarceration or the reason for incarceration relevant to the determination of whether there should be a reduction in arrears? [ 54 ] There is authority that supports the argument that there may be public policy reasons to deny a retroactive variation based on a reduction in income due to incarceration where it was the payor’s intention in committing the offence to avoid the support obligations.

This would obviously be the case if the payor was incarcerated for failing to pay support: see Bernard v Bernard , 2008 ABQB 190 . [ 55 ] There is also a string of authority that suggests that for public policy reasons it is appropriate to deny a retroactive variation based on a reduction in income due to incarceration on the basis that the payor was the author of his own misfortune and should not benefit from his crime. A number of these cases are reviewed in Bernard .

The rationale in these cases include: the intentional acts of a payor do not entitle them to relief; a payor’s obligation to support their children does not change simply because they are in jail; and children should not be punished because of a payor parent’s actions.

While the decisions in these cases use strong language with respect to the payor’s commission of an offence, it is clear that the payor’s ability to pay weighed heavily in the decisions: Bernard at paras 27 – 33 . [ 56 ] Bernard also suggests another possible public policy reason to deny variation in cases of incarceration, that is, situations where the payor was incarcerated for committing an offence against their spouse or other family members. The case that Bernard refers to in this regard is Alderson v Alderson , 1992 CarswellAlta 702 (QB) , a 1992 decision of this Court.

In Alderson the payor brought an application for temporary cancellation of child support while he was incarcerated for assaulting his wife. Justice Montgomery found that the father “was the author of his own misfortune” and denied the father’s application, acknowledging that payments would not be made while the father was in jail and arrears would build up: Bernard at para 29 , referring to Alderson . [ 57 ] I am of the view that the legal framework as set out in Colucci is the appropriate framework to apply when a retroactive reduction is sought on the basis of a reduction in income as a result of incarceration.

This is the case despite the nature of the offence that led to incarceration, including whether it was an offence against a family member. I specifically reject the argument that a payor who is incarcerated is the author of their own misfortune and the accumulation of arrears is a natural consequence of their criminal conduct. [ 58 ] Where a payor has established a material change in circumstances through a reduction in income due to incarceration the Colucci framework presumptively results in a retroactive reduction of arrears based on the payor’s Guideline income.

The only determination for the court after the change in circumstances has been established is the date of effective notice and whether the presumption of three years is appropriate. There is no overriding discretion for a court, in my opinion, to decide that for public policy reasons the retroactive reduction should be denied because the payor was incarcerated or because of the nature of the crime that resulted in incarceration. [ 59 ] The fact of incarceration and the reason for incarceration may both be relevant to an assessment of whether income should be imputed to the payor.

Where application of the Colucci analysis would otherwise lead to a conclusion that arrears should be retroactively reduced, it remains open to a support recipient (or Director) to argue that income should be imputed to the payor.

The idea that the issue of incarceration should be dealt with as an issue of imputing income to the payor is mentioned in Bernard at paras 24-26 and in the Ontario Supreme Court decision of Cote v Taylor , 2013 ONSC 5428 (citing Bernard ). [ 60 ] Restricting consideration of incarceration to the analysis that applies to imputation of income to a payor provides the appropriate framework within which to review the blameworthy conduct of the payor.

This approach provides a framework within which to address the public policy concern that a payor not be able to intentionally avoid support payments through incarceration. It may also address situations alluded to by Justice Macklin in Bernard where a career criminal persistently refuses to engage in legitimate employment ( Bernard at para 25 ). [ 61 ] Limiting the consideration of incarceration to the issue of whether to impute income to the payor also keeps clear the boundaries between the family law child support regime and the criminal justice system and sentencing principles.

These boundaries reinforce that child support is an income-based regime, it is not punitive or retributive. It is the purview of the criminal justice system to determine guilt and the appropriate punishment. It is specifically the role of a sentencing judge to determine the appropriate sentence for an offence.

Respect for the role of a sentencing judge and their responsibility to impose a fit sentence demands that the public’s reprobation of a particular offence not extend to blurring the lines between a payor’s sentence and child support obligations. [ 62 ] I have come to this conclusion with full knowledge of the details of the offence underlying the Father’s conviction and incarceration. The details of the offence that the Father pled guilty to were not set out in detail in either written or oral submissions.

It was vital, in my mind, that the facts of the offence be squarely before me in considering this application therefore I ordered the transcripts of the criminal proceeding and provided them to the parties. [ 63 ] The transcripts confirm that the Father began having sex with his step daughter when she was 15 years old and continued to do so for approximately three years. The sexual abuse involved numerous and varied sexual acts. The Father also supplied his step daughter with crack cocaine. A pregnancy resulted. He gave her cab fare to attend an abortion clinic.

She was informed that her pregnancy was too far along to have an abortion. She met with an adoption coordinator and made plans for adoption. She gave birth to a baby in the summer of 2008. She had kept the pregnancy a secret from her family. The only person who knew she was pregnant was the Father. When her family found out that she had given birth to a baby she said that she had been sexually assaulted and did not know who the father was. The Father continued to have sex with the victim after the birth of the baby. [ 64 ] What the Father did was reprehensible. The consequences profound and far reaching.

There are no words to adequately describe the impact on the victim and her family.

[ 65 ] It was the role of the sentencing judge to determine a sentence proportionate to the gravity of the offence. The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( Criminal Code , RSC 1985, c C-46 , s 718.1).

A sentencing judge is also required to consider the following circumstances as aggravating: if the crime was against a member of the family; if the victim was a minor; if a position of trust or authority was used in the commission of the offence; and if the crime had a significant impact on the victim considering their age, health, and financial circumstances, and other personal circumstances ( Criminal Code , s 718.2). [ 66 ] Incorporating discretion into the determination of a variation application where a payor has been incarcerated creates the risk that the public will seek, and the court will grant, an order that is punitive in nature.

While refusing to make a retroactive adjustment to child support obligations may seem unrelated to sentencing, allowing discretion creates the risk that an order would be decided differently but for the payor’s incarceration. If this were the case the order would, effectively, be a punitive measure. In an income-based child support regime, if a child support adjustment is not made simply because the individual is incarcerated, the order would be purely retributory. [ 67 ] Refusing to adjust a payor’s child support obligations during incarceration undermines the principles of sentencing.

It was the role of the sentencing judge to determine a just and appropriate sentence having regard to all of the circumstances of the matter. Sentencing is an extremely fact specific exercise and judges are given deference as to whether the sentence they find is appropriate: R v Lacasse , 2015 SCC 64 at para 12 .

The reason that sentencing is such a delicate exercise is that sentences that are too harsh or too lenient may offend proportionality and therefore undermine the public’s confidence in the administration of justice: Lacasse at para 12 . [ 68 ] If a sentencing judge determines that a sentence is proportionate, it follows that the punishment imposed as part that sentence plus significant arrears may be too harsh and therefore not be proportionate. Sentencing judges are aware of the income-based child support regime.

They are also aware that sentencing a family member who is the sole income earner for the family will have negative financial consequences for the family. Sentencing is extremely fact specific and it is for the sentencing judge to determine what is proportionate. The law cannot allow judges to grant orders through the child support regime that are in effect punitive and retributory.

Just as appellate courts show deference to sentencing judges, so too should the child support regime avoid punishing an individual for a crime to which they have already been sentenced. [ 69 ] Having large amounts of debt after incarceration may also interfere with reintegration and rehabilitation of the payor into society after incarceration. As highlighted by the Supreme Court of Canada in Lacasse at para 4 : One of the main objectives of Canadian criminal law is the rehabilitation of offenders.

Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate. [ 70 ] It is important that individuals released from prison reintegrate into society in order to minimize recidivism. Substantial child support arrears may create a significant barrier to a payor’s reentry and increase the risk of recidivism: Susan C Antos & McGregor Smyth, "Public Benefits and Child Support Arrears" (2006) 30:4 NYU Rev L & Soc Change 717 at 721.

Large arrears owing after incarceration may interfere with reintegrating and rehabilitating the payor. Justice Macklin recognized this in Bernard at para 44 : …In cases where there is evidence that the debtor has no present or future ability to pay, for the Court not to reduce or cancel his arrears for the period he was incarcerated may be inconsistent with one of the Court’s principle objectives in sentencing, that being to assist in rehabilitating offenders.

While this is not the Defendant’s sentencing court, one must question the merits of continuing the obligation to pay substantial arrears where this places a burden on the debtor such that he finds it difficult, if not impossible, to reintegrate into society.

Although it is in the children’s interests that the father support them financially, it is also in their interests that he become reintegrated as a fully functioning member of society. [ 71 ] Excessive arrears may also create resentment towards the child support system, discourage voluntary payment, and possibly drive a payor away from legitimate employment and “into the underground economy”: Jessica Pearson, "Building Debt While Doing Time: Child Support and Incarceration" (2004) 43:1 Judges' J 4 at 5. This was also noted in the dissenting decision of Chief Justice Shirley S.

Abrahamson in Rottscheit v Dumler , 262 Wis 2d 292 (Wisconsin 2003) who stated: …Moreover, maintaining the support order will result in his release from prison with an insurmountable amount of arrearages that would likely discourage him from making payments or engaging in honest work with paychecks from which a court could order garnishment of his wages (at para 63). [ 72 ] There is also research in the United States showing that payors are more likely to pay child support when they do not face significant arrears: Jessica Pearson et al, “Debt Compromise Programs: Program Design & Child Support Outcomes in Five Locations” (September 2012) online: (pdf) Center for Policy Research <https://centerforpolicyresearch.org/wp-content/uploads/Debt-Compromise- Improving-Child-Support-Outcomes-Final-Report-Nov-14-2012-1.pdf>. [ 73 ] Although I do not intend to do an exhaustive review of jurisdictions outside of Canada, I do note that the issue of whether arrears should accrue while a payor is incarcerated has been explored in some depth in the United States of America.

In December 2016 President Barack Obama issued an executive order that prohibited states from treating incarceration as “voluntary unemployment” and required payors who face incarceration of more than 180 days to be given notice of their right to request a review and adjustment of any existing child support order. [ 74 ] Prior to this, when state courts received a request from an incarcerated payor to modify a child support order the courts would consider whether the payor’s incarceration was “voluntary” or “involuntary”.

Some courts considered incarceration as “voluntary” believing that the incarceration resulted from a voluntary illegal action. Other courts held that incarceration was “involuntary” unless the incarceration was a consequence of

an act of the payor that was intended to relieve the payor of the support obligation such as being incarcerated for failing to pay support or if the crime was committed with the intention of becoming incarcerated in order to avoid child support obligations: Cory Holifield Bennett, "Executive Order 13563 Creates Access to Affordable Child Support Orders for Incarcerated Parents" (2019) 5:3 Texas A&M J of Property L 201 at pp 213 and 214. See also Jessica Pearson, "Building Debt While

Doing Time: Child Support and Incarceration" (2004) 43:1 Judges' J 4 for an overview of child support debt and incarceration. [ 75 ] The law as I have set out in this decision puts families who have a family member incarcerated in the same position whether they are separated or remain intact as a family. A parent who is convicted of sexually abusing one of their children will be incarcerated. If that parent contributed income to the family the family will suffer financially. If the parent was the sole income earner, the financial consequences for the family will be devastating.

This is the case whether the parents are together or whether they are separated or divorced. Child support protects children from the consequences arising from the separation of their parents; it does not protect them from all adverse consequences they may face. The child support regime aims to ameliorate the consequences arising from separation, not all hardship.

The Court in Colucci recognized that the federal child support regime contemplates that the family as a whole – including the child – will share the rising and falling fortunes of the payor parent, just as they would have before the separation ( Colucci at para 28 ). [ 76 ] Further, the Court noted: … The Guidelines contemplate that a drop in payor income may lead to a drop in the child’s standard of living, just as it would if the parents were still together… A drop in support can be presumed to have detrimental impacts on the child, but ongoing communication and disclosure cushions those impacts and preserves the child’s best interests to the fullest extent possible ( Colucci at para 84 ). [ 77 ] This case does highlight a significant public policy issue that demands government attention.

Child victims of abuse, whether it be sexual, physical, or otherwise, may be reluctant to come forward if doing so will be financially devastating for the family. This was a factor in this case and the victim’s decision not to come forward earlier to disclose what the Father was doing.

The Agreed Statement of Facts in the Father’s criminal trial state that the victim was concerned about what would happen to her family if she disclosed what the Father was doing as the Father was the sole support for her mother and the three children that her Mother and Father had together. [ 78 ] Children should not be placed in a position of having to choose between their safety and their financial wellbeing and that of their family. Children have the right to be safe, period. They should not have to worry about the financial consequences of reporting abuse.

This is especially so when the financial consequences will result in the family living in poverty. This is true whether parents are together or separated. Placing children in this position is a complete failure on the part of government and society. In this case the family went from an annual income of $83,229.11 prior to incarceration to the Mother relying on income supports, the food bank, and support from the school that one of the children attended. This is a social problem that requires government attention.

I encourage victims, their families, and the individuals and agencies that support them to bring this issue to the attention of the government and public in an effort to make Canada a country that has robust policies and programs that encourage children to come forward to report abuse and supports them in the aftermath of doing so. Children of the Marriage [ 79 ] The oldest child turned 18 in February 2019. He did not complete high school.

He currently lives with the Mother, works part time as a construction worker, and is in the process of completing his high school education. [ 80 ] I am satisfied that this child remains a “child of the marriage” for the purposes of the Father’s child support obligations. [ 81 ] A payor parent is responsible for paying child support for so long as a child is a “child of the marriage”. The Divorce Act defines a “child of the marriage” as follows: 2(1) child of the marriage means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; Divorce Act , RSC 1985 c 3 (2 nd Supp ), s 2(1) [ 82 ] I have no doubt that the Mother and children suffered years of deprivation and hardship during and after the Father’s incarceration. The Father had been the family’s primary financial provider.

The sudden loss of income was a catastrophic financial blow to the family. [ 83 ] The Mother described learning of the Father’s crimes and incarceration as a crushing experience for herself and the children. The oldest child had just turned 15 when his father entered jail. He lost the benefit of his Father and had to live with the consequences of what his Father had done.

It is not unreasonable to expect that a child who has lost the benefit of a parent for a significant period of time due to incarceration may take longer than their peers or longer than they otherwise would have to withdraw from their parents’ charge. The fact that this child is working in construction and continuing with his high school education is to be celebrated and supported.

Given the background facts and circumstances of this family, I am satisfied that this child remains a child of the marriage for so long as he lives with the Mother and pursues completing his high school education. [ 84 ] The middle child turned 18 in May 2020. At the time of hearing the Application she was no longer living with the Mother. All parties agree that she is no longer a child of the marriage. Her status as a child of the marriage for the purposes of child support may change if she returns to live with the Mother and resumes her education. [ 85 ] The youngest child remains under 18 years old.

The Father agrees that he has ongoing child support obligations with respect to this child. [ 86 ] The issue of whether any of the children will be “children of the marriage” if they pursue post-secondary education was not

raised by the parties. If any of the children do pursue post-secondary education it will be an issue for the Father and Mother to address when it arises. Ongoing Child Support [ 87 ] The Father is required to pay ongoing child support based on his Guideline income. On August 31, 2019, the Father started his own carpentry business. His 2019 Notice of Assessment discloses a 2019 Line 150 Total income of $74,750. This income was solely dividend income.

As such, the taxable amount of the dividend must be replaced by the actual amount received by the Father which was $65,000: Federal Child Support Guidelines , SOR/97-175 , Sch 3, s 5. Child support is payable by the Father for 2019 commencing September 1, 2019, for two children of the marriage based on an income of $65,000. This is a monthly amount of $944. [ 88 ] The Father anticipated his 2020 personal gross income to be approximately $57,000. He provided the rationale for this income in the context of his business operation. The Father proposed that he pay ongoing child support based on an income of $60,000.

This may or may not reflect his actual 2020 income as he suffered a back injury in late November 2019 that required modified work duties. The pandemic also impacted his business. [ 89 ] I order that the Father pay child support for 2020 and 2021 based on an income of $60,000. The Father is required to provide updated disclosure of his actual 2020 and 2021 income. Sweezey v Sweezey , 2016 ABQB 131 provides a comprehensive overview of the disclosure requirements in situations such as this where the payor is self-employed.

As noted above, the Father must pay child support for the oldest child for so long as that child lives with the Mother and pursues completing his high school education. Spousal Support [ 90 ] On October 20, 2015, the Court ordered the Father to pay spousal support in the amount of $1,000 per month beginning October 1, 2015, until further Order of the Court. The Divorce Judgement and Corollary Relief Order (Without Oral Evidence) of May 19, 2016, ordered the Father to pay spousal support in the amount of $1,000 per month commencing October 15, 2015, until further Order of the Court.

Both Orders identified the Father’s guideline income as being $83,229.11, his income in 2013. [ 91 ] The Father requests that spousal support be terminated effective February 1, 2016, the month he was incarcerated. The Father argues that he made voluntary support payments from the date of separation and then made payments pursuant to the court orders. He argues that the Mother has been adequately compensated for any entitlement she may have had. Further, if she has an ongoing entitlement, he does not have the ability to pay.

In this regard he notes that in addition to ongoing child support obligations he has a CRA debt related to the operation of his business and a truck debt. The truck is required for his business operation. [ 92 ] The Mother argues that she continues to be entitled to spousal support on both a compensatory and non-compensatory basis. She argues that the economic disadvantages suffered by her as a result of the marriage have not been compensated. She was and remains the primary care giver. The Father was the sole income earner for the family.

Further, there is an income disparity between the Father and Mother and the Mother is in need of spousal support. She requests that spousal support be continued and reviewed when there are no longer any children of the marriage. [ 93 ] The Director takes no position on the issue of ongoing spousal support. [ 94 ] The parties were married and cohabited for a total of eleven years. Their respective roles in the relationship are not in dispute. An Order for spousal support was not obtained until three years after separation. The Father was incarcerated four years after separation.

At the time of incarceration, the Father had both child and spousal support arrears owing. There is insufficient evidence to make a determination as to how much spousal support the Father voluntarily paid, if any. It is uncontested that he had spousal support arrears prior to incarceration. I am not satisfied on the evidence before me that the Father adequately compensated for any spousal support entitlement that the Mother may have. [ 95 ] While the Mother’s entitlement to spousal support remained ongoing during the Father’s period of incarceration, he was unable to pay.

A retroactive adjustment of spousal support during the Father’s incarceration is appropriate. The quantum of spousal support payable during the period of incarceration is $0. [ 96 ] I am satisfied that the Mother continues to have an entitlement to spousal support on both a compensatory and non- compensatory basis. The decrease in quantum of spousal support to $0 during the period of incarceration impacts the duration of time that spousal support will be payable. Additional information is required in order to determine the appropriate quantum of support payable.

Once the calculations have been done with respect to the retroactive adjustment of child and spousal support arrears the parties and the Court will be in a better position to assess the appropriate quantum of support payable. [ 97 ] Up to date information with respect to the amount of arrears owing prior to incarceration is required as is up to date financial disclosure from both parties for 2020 and 2021. If the parties are unable to agree on a quantum and duration of spousal support they shall advise within 60 days of receipt of this decision of their intention to bring the matter before me.

Prior to doing so I encourage them to set timelines for the filing of evidence and exchange of submissions and to advise of their respective positions on whether written submissions will be sufficient or oral submissions are required. IV. Conclusion [ 98 ] For the reasons set out above, I order the following: • Child support shall be retroactively reduced to the date of the Father’s incarceration, February 2016 to reflect the Father’s actual income during incarceration;

• There are two children of the marriage: the child that is under 18 years and the child over 18 years of age who continues to live with the Mother and pursue completing his high school education. • The Father is required to pay ongoing child support based on his Guideline income. Child support is payable for 2019 by the Father commencing September 1, 2019, for two children of the marriage based on an income of $65,000.

Child support for 2020 and 2021 is payable based on an income of $60,000, subject to updated disclosure. • The quantum of spousal support payable during the Father’s incarceration shall be retroactively reduced to $0. • The Mother continues to have an entitlement to spousal support.

If the parties are unable to agree on the quantum and duration of ongoing spousal support the matter shall be brought back before me with updated calculations with respect to the amount of arrears owing prior to incarceration as well as up to date financial disclosure from both parties for 2020 and 2021. [ 99 ] In the event that the parties are unable to agree on costs they shall advise within 60 days of receipt of this decision of their intention to bring the issue before me. Heard on th e 27th day of August, 2020. Additional submissions received September and December 2020.

Confirmation from parties no additional submissions required on the 9 th of July, 2021. Dated at the City of Edmonton, Alberta this 27 th day of July, 2021. Bonnie L. Bokenfohr J.C.Q.B.A. Appearances: Rhyannon L. O’Heron Bruyer & Mackay LLP for the Applicant Brent Desruisseaux for the Respondent Maeve Cahill Alberta Justice and Solicitor General Family and Surrogate Court Litigation for the Director of Maintenance Enforcement