Heuft v Bramwell, 2021 ABQB 642

Court of Queen’s Bench of Alberta Citation: Heuft v Bramwell, 2021 ABQB 642 Date: 20210813 Docket: FL03 33527 Registry: Edmonton Between: Shirlene Jennifer Heuft Applicant - and - Kevin Donahue Bramwell Respondent Corrected judgment: A corrigendum was issued on August 20, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction

[ 1 ] A mother applies to increase ongoing child support set by court order in 2004, when her daughter was six months old. The child is now 17.

The mother also seeks a retroactive increase going back three years. [ 2 ] The mother points to the extra costs of raising a (now late-stage) teenager and also the effects of inflation through the years. [ 3 ] Though properly served, the father did not respond to the application or meet his per-family-docket-order obligation to provide income disclosure. [ 4 ] I find that monthly child support should be increased provisionally to $800 starting September 1, 2021, that the father shall have one more opportunity to provide full disclosure of his income (by September 17, 2021), and that the mother’s request for retroactive support should be deferred pending that (potential) further disclosure by the father.

B. Background [ 5 ] The 2004 order, granted by Moen J. and requiring $200 monthly child support, reflected an agreement between the Director of Parentage and Maintenance (on behalf of the mother) and the father.

It reflected an “imputed guideline income” for the father of $22,600 and the mother’s guideline income of $4,824. [ 6 ] The parties were never married. [ 7 ] The order called for support “as long as the child is a child as defined in the Parentage and Maintenance Act , unless otherwise ordered by a Justice.” The support was made MEP-enforceable, a “review of … quantum of maintenance and other relief” was set for October 6, 2004, and the father was required to “provide his full financial disclosure including a statement of his income, expenses and assets [and] copies of his [last-three-years] income tax returns.” [ 8 ] As far as I can tell (from the Court’s procedure record), the October 2004 review did not proceed. [ 9 ] The Parentage and Maintenance Act was later replaced by the Family Law Act . (The father has not argued that this change affected his support obligation or otherwise that the child somehow became ineligible for support.) [ 10 ] As discussed below, the father largely stayed current with his $200 monthly obligation through the years. [ 11 ] In 2012, the mother (by then represented by counsel) filed and served a multi-pronged Family Law Act claim, in part seeking variation of child support.

Her affidavit (April 4, 2012) stated (at paras 32 and 33): The [father] is in arrears with respect to his child support obligation. The [father] has not provided updated financial disclosure. I believe the [father] is earning a higher income than the income level his child support payments are in accordance with [i.e. per the 2004 order]. Our child-support order did not specify

section 7 expenses and [our daughter] requires after school care. Currently, I am the only one paying for this expense.

I cannot afford this expense without the [father’s] contribution. [ 12 ] She also filed and served a Notice to Disclose / Application on the father, requiring standard disclosure from him by May 8, 2012. [ 13 ] On June 6, 2012, Burrows J. granted a multi-pronged order, in part requiring the father to provide his disclosure by June 8, 2012 (with the exception of his notice of tax assessment, to be provided within five days of receipt). [ 14 ] On June 20, 2012, Shelley J. imposed a new deadline (June 26, 2012), with a contempt hearing set for that day in the event of non-compliance. [ 15 ] On June 26, 2012, with Goss J. presiding and the father attending (self-represented), the disclosure deadline was re-set to July 3, 2012, with an automatic contempt finding on non-compliance, plus a $100 daily fine “until contempt purged.” The come-back date for the application was August 15, 2012. [ 16 ] As far as I can tell, that application was adjourned to September 5, 2012 for hearing with a cross-application by the father for (in part) an order “cancelling child support arrears.” [ 17 ] On the disclosure front, the father swore as follows (September 3, 2012 affidavit): [reference to Goss J.’s disclosure order] I hide nothing.

I have provided to the [mother’s] lawyer and my new lawyer all the documentation the third parties have sent me. It turns out that most of it is old and only of historical value. Now that I have a lawyer appointed to me and have [had] clearly explained to me what it is that I need to get, I will follow up as quickly as possible. I am confident that I will be able to provide the remaining disclosure shortly. I do not have a personal bank account.

The last one I had in 2005, before I went bankrupt. [ 18 ] On the child-support front, he swore (another September 3, 2012 affidavit): Pursuant to the only child support order ever made in this matter, I was to pay to the [mother] child support in the amount of $200 a month, starting August 1, 2004. However, the [mother] continued to live with me until December 2006, and no child support was due

her. Upon learning about this order, approximately a week or so later, I immediately contacted the lawyer who had put it together, … and demanded that he get it revoked. [He] did not do it. … I continued to live with the [mother] for another two years or so and forgot that MEP was charging me $200 a month. After the [mother] and I finally separated in 2006, I continued to pay the ordered amount and at the same [time] was looking for a lawyer to help me vary the order. … I even paid more than what I was ordered.

For example, in 2006-2007, … I was paying [the mother’s] groceries, utility bills, and [also] paid for [our daughter’s] day-care and clothes. In the past several years I have given a lot of cash to the [mother]. I am currently in small arrears of $1,200. However, given that I have overpaid child support, I ask the Court to order that the arrears be cancelled in their entirety. I have been self-employed all my adult life. I currently [own] two companies: All Weather Roads Ltd and 1433064 Alberta Ltd. I am the president of both companies. I am the only employee of both companies.

In [the] last two years, neither company has made any profits. My line 150 income for the past three years was consistently around $8,000. I lead a modest life.

When needed, I borrowed money from personal friends. [ 19 ] On September 5, 2012, Germain J. stayed enforcement of the contempt dimension of Goss J.’s order for 30 days “to allow [the father] time to fully comply with the terms of [the Goss J.] order.” [ 20 ] While other (primarily parenting) orders were granted later in 2012, I do not see any further order bearing on the disclosure directed by the above orders. [ 21 ] On September 10, 2013, the mother filed another Notice to Disclose / Application, again calling for disclosure from the father, this time by October 17, 2013.

The court file does not reflect the outcome of that request either. [ 22 ] In late October 2013, this matter went into case management. [ 23 ] It appears from the court file that, despite several attempts, no case-management meeting was ever held. [ 24 ] In early 2015, the lawyers for both the mother and the father ceased to act. [ 25 ] On the child support and disclosure litigation fronts, matters then appeared to lay dormant until March 4, 2021, when the mother filed a Notice to Attend Family Docket Court for “a change to a child support order.” The docket appearance was set for April 1, 2021. [ 26 ] On that date, with Graesser J. presiding and with the mother and father both marked as in attendance (presumably via Webex), the mother received the green light for a family chambers application on May 18, 2021, with disclosure required beforehand by both parties.

Here is the full endorsement: Adjourned to Family Chambers – May 18, 2021 at 10:00 am Issue: Child Support Deadlines: Disclosure – by April 30, 2021, mutual [obligation] to provide financial disclosure for 2019 and 2020, pursuant to items 1-9 of [the] Standard Notice to Disclose (attached) [Mother’s] Application and Affidavit to be filed and served by May 7, 2021 [Father’s] response to be filed and served by May 14, 2021 [ 27 ] As far as I can tell, the mother provided the required disclosure. [ 28 ] On May 7, 2021, she filed a Family Application for the following remedy: Varying child support.

The order for support was made 17 years ago [for] $200 per month. [ 29 ] Under “Grounds”, she listed: Varying child support as $200 per month is not enough. Child is 17 and needs more. Requesting $800 per month. [ 30 ] In her supporting affidavit (same date), she swore: Cost of living has gone up. Daughter is 17 now and $200 per month is not enough. I would also ask that [the father] pay for our daughter’s health benefits through my work benefits. It costs me $62.50 every pay period for family benefits. [The father] has never had benefits and never paid for our daughter’s health care since her birth.

I am also asking for 3 years back [support] on the child support as it is expensive for me by myself to be financially responsible. [31] The mother’s application came before me in family chambers on May 18, 2021. [32] Not clear about the mother had served the father with her materials, I adjourned her application to check. From my review ofthe court file, and after checking with Ms. Heuft, it appeared that Mr. Bramwell had not been served. [33] On June 28, 2021, I gave the following directions (via email to both parties, which attached a copy of the Family DocketCourt endorsement, Ms.

Heuft’s application, and her affidavit): … I am extending the disclosure deadline for Mr. Bramwell to Friday, July 9, 2021 at 4:30 pm, which will also be his [new] deadline forfiling and serving any affidavit he wishes to provide in response to the child-support variation application. For greater certainty, Mr. Bramwell has until that date and time to (1) complete, file and serve his complete disclosure (per the itemizedlist) and (2) file and serve any affidavit on the variation application. I will then consider whether Ms.

Heuft should have a further opportunity to file a reply affidavit, following which I will decide whetherchild support should be varied and, if so how much and for what periods. [34] As of August 13, 2021, I am not aware of any response from Mr. Bramwell, let alone provision of any, let alone all, of hisrequired disclosure. [35] Payment-of-support-wise, MEP information current to July 29, 2021 reflects that the father is close-to-current in his monthlypayments, with an arrears balance of $1,267.14 and an “active arrangement balance” of $280.

Summary [36] The original order dates from 2004 and requires payments of $200 per month for the one child, which the father has largelypaid (per the relatively small arrears balance). [37] The mother has three times sought financial disclosure from the father, each time apparently not receiving any materialdisclosure. [38] In her first (2012) bid, she referred to perceived higher-than-time-of-original-order income for the father. [39] I infer that her second (2013) and third (2021) requests for disclosure were sparked, at least in part, by the same perception i.e.that the father was earning more than the $22,600 on which the 2004 order ($200 monthly) was based.

C. Issues [40] What change to ongoing child support can or should be made in the face of an “information vacuum” about the father’sincome? [41] Should any change reach back three years? D. Law and analysis Centrality of financial disclosure [42] Financial disclosure is at the heart of the child-support regime. Per the Supreme Court of Canada in Colucci v Colucci, 2021SCC 24: …courts have increasingly recognized that the payor’s duty to disclose income information is a corollary of the legal obligation topay support commensurate with income (Brear, at paras. 19 and 69, per Pentelechuk J.A.; Roseberry v.

Roseberry, 2015 ABQB 75, 13Alta. L.R. (6th) 215, at para. 63; Cunningham v. Seveny, 2017 ABCA 4, 88 R.F.L. (7th) 1, at paras. 21 and 26). As explained byBrown J., speaking for the full Court in Michel, payor parents “are subject to a duty of full and honest disclosure — a dutycomparable to that arising in matrimonial negotiations” (para. 33, referencing Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, atparas. 47-49).

Courts and legislatures have also implemented various mechanisms to incentivize and even require regular ongoingdisclosure of updated income information by the payor, along with tools to move proceedings forward in the face of non-disclosure. Those mechanisms include imputing income to payors who have failed to make adequate disclosure, strikingpleadings, drawing adverse, and awarding costs.

By encouraging timely disclosure, these tools reduce the likelihood that the recipientwill be forced to apply to court multiple times to secure disclosure. [para 52] [emphasis added] [43] Per the same Court in Michel v Graydon, 2020 SCC 24: Failure to disclose material information is the cancer of family law litigation (Cunha v. Cunha (1994), (BC SC),99 B.C.L.R. (2d) 93 (S.C.), at para. 9, quoted in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34).

And yet, payorparents are typically well aware of their obligation as a parent to support their children, and are subject to a duty of full and honestdisclosure — a duty comparable to that arising in matrimonial negotiations (Brandsema, at paras. 47-49). The payor parent’sobligation to disclose changes in income protects the integrity and certainty afforded by an existing order or agreement

respecting child support. Absent full and honest disclosure, the recipient parent — and the child — are vulnerable to the payorparent’s non-disclosure. [para 33] [emphasis added] [44] Here we have non-disclosure. The question is what to do about it. Imputing income where non- or insufficient disclosure [45] Under the Alberta Child Support Guidelines, where a child-support payor has been obliged to provide financial disclosure (asoccurred here three times, under ss 21(2) of those Guidelines) and has failed to make full (or any) disclosure, para 19(1)(

f) authorizes theCourt to impute income to the payor: The court may impute the amount of income to a parent that it considers appropriate in the circumstances, and thosecircumstances include [where] … the parent has failed to provide income information when under a legal obligation to do so … [46] What evidence is needed, if any, before the Court can impute income?

Imputing income requires some evidence i.e. no arbitrary estimates [47] The cases are clear that income imputing cannot be pure guesswork. [48] In Poursadeghian v Hashemi-Dajah, 2010 BCCA 453, the BC Court of Appeal held: The judge directed the defendant to provide his income tax returns and affidavits that might support his position but the defendant failedto comply with this direction. He was thus in breach of his duty to disclose under the Guidelines, and in non-compliance with thecourt’s order. This permitted the judge to impute income to the defendant under ss. 19 and 23 of the Guidelines.

In the absence of complete income tax returns and other financial information of a spouse the court must look to other evidence,including circumstantial evidence, for the purpose of imputing income, A.G. v. B.R., 2005 BCSC 96 at para. 57. The judge relied on the little evidence available concerning the defendant’s ability to obtain a mortgage and his shareholding in Lucky9, to impute an income of $75,000. She did not accept the explanation offered for the defendant’s shareholding in Lucky 9 or for thebasis on which he obtained a mortgage on his home.

There was some evidence to support that conclusion and the judge was permitted to draw an adverse inference against thedefendant because of his inadequate disclosure.

The defendant cannot be heard to dispute the level of income attributed to him, norpermitted to escape his support obligations because of his failure adequately to disclose income information. [paras 22-25] [emphasisadded] [49] In Graham v Bruto, 2008 ONCA 260, the Ontario Court of Appeal stressed the need for some evidentiary basis for imputingincome: As to the imputed income going forward, the appellant [support payor] submits that the amount was arbitrary and that there was a burdenon the respondent to adduce evidence.

However, this was not simply a case of deliberate underemployment; the appellant also failed tomake proper financial disclosure. That said, in our view, there was a basis in the record for the amounts of imputed income. Thetrial judge had the various financial statements, such as they were, which showed various sources of income and large monthlyexpenditures.

The trial judge also had the appellant’s lengthy and impressive resume that demonstrated that the appellant wasunderemployed. [para 4] [emphasis added] [50] A similar failure to disclose and conasequential imputing of income were upheld in MacKenzie v MacKenzie, 2003 NSCA120, again with some (albeit limited) evidence of the payor’s income Mr. MacKenzie has not satisfied me that the trial judge erred in deeming him to have an annual income of $46,000 and awarding childsupport on that basis. Mr. MacKenzie does not deny he was obliged to produce the financial information.

He intentionally failed to produce it even after suchproduction was ordered by the trial judge. He failed to attend the divorce trial. In the face of these failures, there was little left for thetrial judge to do but to deem the amount of Mr. MacKenzie’s income based on the financial information that had been filed withthe application for an uncontested divorce, which he found inadequate, and on Ms. MacKenzie’s oral evidence of Mr.MacKenzie’s income.

Sections 19, 23 and 24 of the Guidelines authorize trial judges to impute income in certain circumstances, including where a spouse hasfailed to provide financial information when under a legal obligation to do so. Sections 23 and 24 further provide that the trial judge maydraw an adverse inference against such a spouse. This is what the trial judge did in this case.

In doing so, he made no error. [paras 11-13][emphasis added] [51] The Ontario Court of Appeal again confirmed the need for evidence, in Drygala v Pauli, (2002) (ONCA), 61 OR (3d) 711 (CA): The trial judge imputed an annual income of $30,000 based on s. 19(1)(

a) of the Guidelines. No reasons are given for the choice ofamount. All that is said is that it is not unreasonable to believe that lucrative part-time employment was available to Mr. Pauli.

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be arational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be

grounded in the evidence . [paras 43 and 44] [emphasis added] [ 52 ] Same perspective in Blatherwick v Blatherwick , 2015 ONSC 2606 (Ricchetti J.): Where a party fails to provide financial disclosure, the Court may draw an adverse inference and, if necessary, impute income to that party. See Dewan v. Dewan , 2012 ONSC 503 . Where necessary, this court may make findings of property value and a party’s income despite the absence of a complete financial record. This process does not involve mere speculation or guessing.

Instead, it involves the drawing of reasonable inferences from the evidence and, in the absence of a reasonable explanation for the non-disclosure, drawing adverse inferences arising from the failure by a party to produce financial documents which could have been and should have been reasonably available to the party for production. In Crosbie v. Crosbie , 2012 ONCA 516 , the Court of Appeal had the following to say where the husband had failed to produce financial information: [19] The application judge arrived at an income figure for Mr. Crosbie based on the information the parties provided, primarily being Ms.

Crosbie’s reconstruction of Mr. Crosbie’s gross income. While, the important task of imputing income is extremely difficult, the reasons should demonstrate that, notwithstanding the paucity of evidence, some degree of rigor has been applied in arriving at the amount. Here, given Mr. Crosbie was self-employed, the application judge should have indicated that he took other factors into account such as legitimate business expenses and taxable and non-taxable benefits. [20] That said, Mr.

Crosbie failed to provide evidence to support the business expenses he now argues the application judge should have taken into account. The application judge used the information the parties provided him to arrive at an amount of imputed income. A payor such as Mr. Crosbie, who does not disclose income information as required runs the risk that income will be attributed to him – accurately or otherwise. The application judge’s decision is entitled to deference.

We would not interfere. [para 331 and 332] [emphasis added] [ 53 ] In Smith v Davies , 2018 ONSC 920 , Madsen J. imputed income with help from various clues in the evidence: In this case, Lee has failed to provide any reliable disclosure regarding his actual income for 2017, with financial statements showing incomes ranging from $14,400 for the year to $36,000 for the year. His testimony regarding his income was inconsistent. At the trial he produced no paystubs or any other documentary evidence, therefore leaving the Court in a position of effectively “guessing” what his 2017 actual income was.

At the same time, a letter from his own counsel dated October 19, 2016, in response to a request from Miranda’s counsel to disclosure regarding compensation as an apprentice for WE Davies Opticians, stated that Lee’s estimated income during his studies would be $50,000 . … In these circumstances, given Lee’s high income from 2012 to 2016 , his statement that he would not presently accept a $100,000 per year sales job even if offered to him , his lack of documentary evidence about his actual 2017 income, his representation through counsel that his estimated income would be $50,000 , and his inconsistent financial statements , this Court finds Lee’s income for child support purposes to be $50,000 from March 1, 2017 until the anticipated completion of his studies, so long as he pursues those studies on a full time basis. … [paras 111 and 113] [emphasis added] [ 54 ] In Collins-Mark v Mark , 2013 ONCJ 733 , Clark J. noted the need for an “evidentiary basis” to impute income: The Court is prepared to impute income to the father, but not to the extent of the amount in the original order.

Notwithstanding his failure to provide full financial disclosure, the Court must still have an evidentiary basis on which to make a finding . It is clear from his last 3 income tax returns that annual income of $45,000.00 was unrealistic, and perhaps even arbitrary. What often happens when a payor does not respond to the Court process and the matter proceeds on an uncontested basis, income is often imputed on an “inflated” basis, on a somewhat speculative or “wishful” evidentiary foundation . This might well have been the case here.

To be fair, however, the Court did not ask the mother about the facts or circumstances behind this fixed figure. [para 53] [emphasis added] [ 55 ] In HRMT v SNS , 2018 ABQB 843 , Horner J. grappled with incomplete disclosure, working with the available evidence: I have no trouble finding on the evidence, when considered with S.N.S.’s failure to provide adequate disclosure despite repeated orders to do so, that he intended to and did avoid child support obligations from the date of separation to trial. This finding permits me to impute income to S.N.S.

Again, I am satisfied on the evidence that an appropriate amount to impute annually should be based on the only evidence this court has, which is the partial bank account and credit card statements produced by S.N.S. late in the trial. These amply support a finding that S.N.S. had income in the years since separation of, at a minimum, the amount of the deposits in each year as set out in paragraph 48 above .

S.N.S. has chosen, despite repeated requests from R.M.T. and the court, to hide the source of these deposits. [paras 55 and 56] [emphasis added] Application of these principles here [ 56 ] In the present case, we have next-to-no information about Mr. Bramwell’s current or almost-last-decade income. [ 57 ] He apparently failed to provide any material disclosure to Ms.

Heuft in 2012 and 2013 and has clearly failed this (2021) year. [ 58 ] The most “current” evidence is his less-than-illuminating statement (September 3, 2012 affidavit) that his income derives from two corporations and that his line 150 income “for the past three years” was around $8,000. [ 59 ] In a corporate-income scenario, line 150 income does not necessarily represent the payor’s true ability to pay child support: see the potential adjustments required under s. 18 (“Shareholder, director or officer” of the Alberta Guidelines ).

[ 60 ] As noted earlier, the income figure underlying the $200 monthly support dates from 2004. [ 61 ] On these facts, I have next-to-no evidentiary basis on which to impute an income to Mr. Bramwell for either ongoing or retroactive-three-years support. [ 62 ] Does this mean Ms. Heuft has no recourse? [ 63 ] The answer is no. Pre-disclosure support orders [ 64 ] While I am not in a position to impute income to Mr. Bramwell on the basis of evidence on the record (given his disclosure failures and Ms.

Heuft having no particular window into his income-generating activities), I can vary support on a pre-disclosure basis i.e. set support on a temporary basis, with Mr. Bramwell having an opportunity (albeit time-limited) to provide his long-outstanding disclosure and, as applicable, to argue that the temporary support exceeds his ability to pay support. Cases on pre-disclosure support orders [ 65 ] In Li v Wong , 2010 ABCA 296 , the Court of Appeal held: Counsel for the appellant [support payor] argued to the chambers judge that the respondent had “grossly over-exaggerated” the appellant’s income .

He pointed to the appellant’s 2009 tax return to assert an income of only $103,280.00. Moreover, the appellant denied any ability to control and divert income from his various business interests for personal expenditures. The parties conceded that this was only an interim order. The appellant’s actual income would likely be subject to further proceedings supported by further financial disclosure … The chambers judge provisionally imputed the appellant’s income at $225,000.00 per annum.

He suggested that, on the material before him, imputing income at $225,000.00 on a “pre-disclosure, without prejudice basis” was “conservative” …. The appellant argues that the chambers judge erred in doing so. There is no doubt that the chambers judge had a discretionary power to impute income, if appropriate in the circumstances . … … we find no basis to intervene.

As the parties themselves conceded, further proceedings addressing further financial disclosure, notably the financial records of Dick & Sons, are on the horizon, the results of which may support a change in the amount provisionally set by the chambers judge in either direction . The chambers judge made provisional pre-disclosure orders not only estimating the income of the payor spouse, but the means, needs and circumstances of the payee spouse.

It may not be ideal to make such important decisions by inference from records, but a party who is not forthcoming with direct information takes the risk that circumstantial evidence will be invoked against that party . In light of the evidence before him, the chambers judge’s decision is not in our view infected with palpable and overriding error as to

interpretation or inference. Nor do we find that this is a case where the chambers judge misdirected himself in law, ignored relevant matters or considered irrelevant matters in reaching the conclusion that he did. [paras 5-10] [emphasis added] [ 66 ] In MacIntosh v MacIntosh , 2003 ABQB 498 , Veit J. elaborated on the nature of a pre-disclosure support order: I agree with both parties that it is useful to make a determination of Mr.

MacIntosh’s income for the purposes of this child support order: establishing a specific income number will allow the parties to correct any miscalculation which may be exposed by eventual disclosure. Where a party does not make the required disclosure, the court is entitled to draw an adverse inference against that party: s. 23 of the [Federal] Child Support Guidelines. However, in this case, despite Mr. MacIntosh’s ongoing failure to provide the required financial disclosure, the court does not draw a permanent adverse inference against him.

Rather, the court makes an order which it styles a pre-disclosure order since both Ms. MacIntosh and the court require completed financial disclosure before making a final determination. In making a rebuttable presumption of Mr. MacIntosh’s income, the court is not imputing income to him pursuant to the provisions of s. 19 of the guidelines ; therefore, the court is not required at this stage to consider the application of the Smolis-Hunt decision to Mr. MacIntosh’s income for 2002. Mr.

MacIntosh’s interlocutory child support obligation is based on an assumed or deemed or inferred gross annual income of $88,000 per year; his monthly child support obligation according to the guidelines is therefore set at $1,155, plus his proportionate share of the

section 7 expenses which are discussed below. When Mr. MacIntosh completes his financial disclosure, the child support order made today can be reviewed at the request of either party; in any event, that disclosure must be completed by September 15, 2003. [para 4] [emphasis added] [ 67 ] In Lopushinsky v Nahayowski , 2006 ABQB 758 , Lee J. held: Mr. Nahayowski complains that the Notice to Disclose/Notice of Motion returnable on October 10 th was withdrawn at the last minute, and that he needs to seek a lawyer to assist him with respect to these various applications.

He submits that a short adjournment of 1 to 2 weeks would be more than sufficient in this regard. He objects to any interim pre-disclosure order being issued against him, especially on the basis of a $60,000.00 annual income since he only earns $15,000.00 a year. Mr. Nahayowski provided the Court with no documentation establishing his current income, but acknowledged that he is a drywaller by profession. As such, it is difficult to imagine how an able-bodied drywaller in this economy can only earn $15,000.00 a year .

In order to provide some sort of child support in this matter, I direct that there be an interim pre-disclosure order setting on a without prejudice basis the payor's annual Guideline income at $60,000.00 and the recipient's annual Guideline income at $26,400.00. The sum of $665.00 in child support per month for support of the one child will payable on the first of each month beginning October 1 st , 2006, enforceable until further order of this Court. This Order will continue unless and until the Respondent, on two clear day's notice, brings the matter back to Court .

The amounts owing under this Order shall be paid to the creditor through the Director of Maintenance Enforcement.

The Respondent is also required to provide all of the documents required by the Notice to Disclose/Notice of Motion to the Applicant by October 20 th , 2006 . [paras 4-8] [emphasis added] [ 68 ] I recognize that the Court of Appeal and Veit J. gauged even pre-disclosure income on the basis of some evidence in the record i.e. were not simply arbitrary estimates. [ 69 ] I also recognize that Lee J.’s order was anchored on an inference about expected occupational earnings. [ 70 ] In the present case, I am nonetheless prepared to grant an interim without-prejudice pre-disclosure order granting the mother the requested increased support (moving from $200 to $800 monthly), for these reasons: 1.

I am not prepared to assume that the father’s income has remained at $22,600 (i.e. less than minimum wage) over the last 17 years or, in any case, that he presently earns a sub-minimum-wage income; 2. nothing in the record reflects any particular reason why the father would not earn at least minimum wage; 3. given the father’s complete “radio silence” on the disclosure front in 2012, 2013 and this year, in the face of the mother’s stated perception (circa 2012 and continuing (as I have inferred above) of his income having increased), I infer that, indeed, his income has increased from the circa-2004 level on which support was, and is still, based.

Otherwise, he would be stepping up with an accurate and comprehensive picture of his income i.e. to justify the continuation of support at $200 monthly; 4. support payors should not assume that radio silence will be rewarded; 5. despite multiple and increasing-consequence orders (as detailed above), the father continued, and continues, to fail on disclosure; 6. the mother’s requested increase ($200 to $800 monthly) is a material jump but not an obviously outlandish request (subject, of course, to the father showing otherwise); 7. the child in question will turn 18 in January 2022 (and the mother did not signal likely or possible continued “child of the marriage” status beyond 18, though of course that may change); and 8. the father will have an opportunity (outlined below) to provide full disclosure of his income and (as applicable) argue that the increased support is out of proportion to his actual or potential earnings. [ 71 ] I do not accept that a complete disclosure breakdown and a resulting complete mystery about a support payor’s income translates to immunity to an increased support order. [ 72 ] Simply put: I am drawing a (provisional) adverse inference that Mr.

Bramwell’s actual current income is commensurate with child support of $800 monthly (if not higher) – otherwise he would have stepped up with disclosure in response to the mother’s application -- and placing the onus on him, if he believes otherwise, to prove it, via disclosure of his full financial circumstances. [ 73 ] How about the mother’s request for retroactive support for three years?

Request for retroactive support [ 74 ] My understanding of the retroactive-changes case law is that such changes are made in light of the payor’s actual income in the earlier periods, whether higher or lower than anticipated i.e. not on the basis of inferred income(s). [ 75 ] In any case, I am not prepared to make any retroactive adjustments without giving Mr. Bramwell one more opportunity to provide full disclosure of his income for the three years preceding May 2021 (see below). E. Conclusion [ 76 ] Effective September 1, 2021, Mr.

Bramwell’s child support obligation is increased to $800 monthly, to continue as long as the child in question is a child of the marriage, subject to modification (if warranted) in light of the disclosure directed below. [ 77 ] Mr. Bramwell has until September 17, 2021 to provide the disclosure directed by Graesser J. in the Family Docket Court endorsement from April 1, 2021. [ 78 ] If he fails to provide such disclosure by that date, the window will close for modification of ongoing child support through to September 1, 2022 i.e. assuming the child continues to be a child of the marriage throughout that period.

If the father contends that his income is insufficient to pay $800 support, he can apply, subject to full disclosure of his income, for variation after September 1, 2022 (going forward only).

[ 79 ] I will consider the mother’s request for retroactive increase (as well as her section-7-expense request) after September 17, 2021, whether the father has provided full disclosure by that point or not. If he fails to provide full disclosure, he risks a further adverse inference that his income, back to September 2018 and through to September 2021, was sufficient to pay support of $800 monthly. Heard on the 18 th day of May, 2021. Dated at the City of Edmonton, Alberta this 13 th day of August, 2021. M. J. Lema J.C.Q.B.A.

Appearances: Shirlene Jennifer Heuft Self-represented litigant _______________________________________________________ Corrigendum of the Endorsement of The Honourable Mr. Justice M. J. Lema _______________________________________________________ Paragraph 79 was changed by adding “...( as well as her section-7-expense request) ...”