Bailey v Bailey, 2021 ABQB 74

Court of Queen’s Bench of Alberta Citation: Bailey v Bailey, 2021 ABQB 74 Date: 20210201 Docket: 4812 008355 Registry: Wetaskiwin Between: Shane Ray Bailey Plaintiff Respondent/Cross-Applicant - and - Amy Teresa Bailey Defendant Applicant/Cross-Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice S.E.

Richardson _______________________________________________________ [ 1 ] After a half-day family special chambers application, an oral decision was given on issues of parenting, s 3 child support (retroactive and ongoing), s 7 child support (retroactive and ongoing), and access to the son’s counselling records. The child support applications included a determination of Mr. Bailey’s guideline income. [ 2 ] At the conclusion of the decision, each party argued that they were substantially successful and entitled to costs.

As with many family applications, neither party was 100% successful. [ 3 ] The spouses were married in April 2006. At that time, Ms. Bailey had a daughter, then aged 3 years old. This child has never had a relationship with her biological father, although since 2005 he has paid court ordered child support. Since the marriage, Mr. Bailey has stood in loco parentis to this child. The parties had a son in 2009. They separated in 2012 and were granted a consent divorce, with all corollary matters also consented to, in 2014. [ 4 ] In the summer of 2018, Ms.

Bailey had partnered with a new spouse and moved to BC with the children in order to live in his home. Mr. Bailey consented to this move. Although unhappy that the children were moving to BC, he acknowledged that his employment (in the energy industry and working almost exclusively on site in remote areas for long periods of time), made it impossible for him to be the residential parent.

[ 5 ] At the time of the move, the children were 15 and 9. The parties continued to work cooperatively until April 2019 when Mr. Bailey stopped paying Ms. Bailey for most of the s 7 expenses she forwarded to him. After September 2019, Mr. Bailey ceased paying any s 7 expenses. [ 6 ] Mr. Bailey has always been current on his s 3 child support. [ 7 ] This brewing conflict erupted in the late fall of 2019 when Mr.

Bailey had to apply for a Court order to effect parenting time with the children over the Christmas holiday. [ 8 ] That application was successful, with the Court directing the parties to mediation to resolve the child support issues. That mediation was unsuccessful. Ms. Bailey then made a desk application to resolve outstanding issues. The Court decided that application was not suitable as a desk application, and the present special chambers application was set. Parties Position on Costs [ 9 ] Counsel for Ms.

Bailey suggests that she was substantially successful on the issues of the s 7 expenses, and argues that the arbitrary nature of Mr. Bailey’s decision to stop reimbursement for these expenses forced her to bring the application. She also relies upon the fact that she made no claim for s 3 child support changes until Mr. Bailey cross-applied and claimed a retroactive s 3 overpayment. She seeks costs per Column 1

Schedule C. [ 10 ] Counsel for Mr. Bailey suggests that he was significantly more successful on the issues of s 7 expenses. Further, he argues that this application actually began with the 2019 parenting application which he was forced to bring because of Ms. Bailey’s conduct regarding Christmas parenting time. He seeks costs. [ 11 ] In assessing success, I must be mindful that, as the Court of Appeal stated in DBF v BF , 2018 ABCA 108 at para 13 , “Success in family matters means substantial success, not absolute success…”.

Decision on Costs [ 12 ] Authority to award costs falls under r 10.28-10.33 of the Rules of Court . In general, costs should be fair, just, efficient and cost-effective. One of the primary purposes for awarding costs is to offset the fiscal impact of a person being forced to appear in court without a valid legal reason. Other considerations listed in r 10.33 which apply to my consideration in the present case include: 1. The result of the action and the degree of success of each party; 2. The amount claimed and the amount recovered; 3. The importance of the issues; 4. The complexity of the action; 5.

The conduct of a party that tended to shorten the action; and 6. Any other relevant matter that might be appropriate. [ 13 ] The disputes that informed this application arose after over 5 years of cooperative parenting and child support between the parties. The disputes themselves were informed by the fact that each party has since partnered with someone else, and the fact that Ms. Bailey moved to BC with the children, thus limiting the regular in person contact with the children and Mr. Bailey. Mr. Bailey stopped paying s 7 expenses. Ms.

Bailey then restricted parenting time over Christmas and the brewing conflict resulted in Court applications. [ 14 ] The materials indicated that the parties were in agreement on parenting, they just needed the Court to fix a rotation for Christmas and spring breaks as well as summer holidays. [ 15 ] Ms. Bailey made no mention of her position on Mr. Bailey’s request for access to the son’s counselling file. [ 16 ] Mr. Bailey agreed in advance to pay his share of the s 7 expense for counselling and a dental retainer. He also agreed to pay s 7 expenses for hockey, he just sought a limit to this annual expense.

He also agreed to pay some s 7 expenses for the daughter’s post- secondary education, but he sought to reduce his share of this expense to take account of the fact that the daughter’s biological father should also be assumed to carry a legal share of this expense. [ 17 ] He opposed the increase to his guideline income and argued that he had overpaid s 3 child support since 2016 and sought a credit for this claimed over payment. He also sought a credit against ongoing child support claiming undue hardship given the travel costs assumed in order to have parenting time after the children moved to BC, under s 10(2)(

b) of the Federal Child Support Guidelines. This undue hardship claim was detailed in his concise letter but was not in his cross-application. [ 18 ] Mr. Bailey was successful on his unopposed request to have access to the son’s counselling records. He was successful on limiting his s 7 obligations for the son’s hockey and the daughter’s post-secondary expenses.

He was successful in opposing the s 7 claim for the daughter’s graduation dress and grad wear. [ 19 ] He was unsuccessful in his undue hardship claim, given that it was not in the cross- application and he did not provide evidence on his household standard of living given that he has a new partner and is “living in her home”. He was unsuccessful in his

claim of overpayments of child support since 2016. He was also unsuccessful in his opposition to the daughter’s high school math tutor as a s 7 expense as well as his request to eliminate his s 3 child support obligations for the daughter in post-secondary. [ 20 ] Ms. Bailey was successful in her request for full s 3 child support for the daughter, despite the fact that the child is over 18 years old, and living in residence at university.

She was also successful in her claim for full s 7 reimbursement for both children’s martial arts expenses. [ 21 ] She was unsuccessful on her request to retroactively increase Mr. Bailey’s guideline income by including small RRSP withdrawals and a tax-free travel allowance provided by his employer for his out of town assignments. She was also unsuccessful in including the daughter’s graduation clothing as a s 7 expense. [ 22 ] There was mixed success on the issues of the amount of permitted hockey expenses and permitted post-secondary expenses. [ 23 ] Mr.

Bailey submitted evidence that was not admissible and therefore not considered: a third-party affidavit (his new partner) on an irrelevant issue (an unfortunate parental disturbance that arose out of the initial stages of this Court proceeding, that was witnessed by both children). Ms. Bailey retained new counsel mid way through this Court application which resulted in the filing of multiple new affidavits for the application. Each of these litigation choices resulted in added time and added expense to the application. [25] The parties each enjoyed an equivalent level of success across the issues.

The arbitrary nature of the conduct of each party (Ms. Bailey on Christmas parenting in 2019; Mr. Bailey on ceasing to pay s 7 expenses) contributed to the need for Court intervention. [26] Each party will bear their own costs. Dated at the City of Wetaskiwin, Alberta this 1 st day of February, 2021. S.E. Richardson J.C.Q.B.A. Appearances: Larry Hawkeye for the Plaintiff/Respondent/Cross-Applicant Jordan Crerar for the Defendant/Applicant/Cross-Respondent