Sherbo v Sherbo, 2021 ABQB 76

Court of Queen’s Bench of Alberta Citation: Sherbo v Sherbo, 2021 ABQB 76 Date: 20210202 Docket: 4801166816 Registry: Calgary Between: Chelsey Sherbo Applicant (Respondent by Cross Application) - and - Cesare Angelo Sherbo Respondent (Applicant by Cross Application) _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] This is an application by Chelsey Sherbo (“Ms. Sherbo”), filed on October 29, 2020, in which she seeks to vary the terms of the January 24, 2018 Divorce Judgment relating to on-going and retroactive

section 3 child support, and to enforce the payment of

section 7 expenses. In her filed application and Concise Letter, Ms. Sherbo sought retroactive relief back to May 2018. However, at the outset of the hearing of this application on January 21, 2021, Ms. Sherbo’s counsel advised that retroactive relief is sought to November 1, 2019, only. This is the same position set out in Ms. Sherbo’s Concise Letter filed on December 17, 2020. [ 2 ] On December 15, 2020, Cesare Sherbo (“Mr. Sherbo”) filed a cross-application seeking a reduction of the amount of

section

3 child support otherwise payable on the basis of undue hardship. He also invited the court to impute income to Ms. Sherbo on the basis of alleged intentional unemployment or under-employment. Mr. Sherbo’s written cross application and the Concise Letter filed by his then counsel, Emily Varga, are silent as to the issue of retroactive relief. [ 3 ] This application was heard by me on January 21, 2021. At the conclusion of oral submissions, I briefly reserved my decision to consider the matter further. These are my reasons for decision.

Facts [ 4 ] The parties were married on June 27, 2009, and separated on October 5, 2015. There are two children of the marriage. M., currently almost 10 years of age, was born on April 23, 2011, while D., almost 8 years of age, was born on March 13, 2013. By the terms of the January 24, 2018, Divorce Judgement, Mr. Sherbo’s Guideline Income was set at $52,000 per annum, while Ms. Sherbo’s Guideline Income was set at $1200 per annum. Mr. Sherbo was directed to pay $733 per month in

section 3 child support, as well as 97.2% of eligible

section 7 extraordinary expenses. [ 5 ] The terms of the Divorce Judgement specify that the parties shall have joint custody of the children, but provides that Ms. Sherbo will have primary parenting responsibilities and sole responsibility to make day-to-day decisions regarding the children’s education and healthcare. The Divorce Judgement provides that Mr. Sherbo will have reasonable and generous access to the children as may be agreed upon by the parties or as directed by the parties Parenting Coordinator. Commencing in January, 2020, the parties agreed to shared parenting on a 50-50 basis. [ 6 ] Mr.

Sherbo is a plumber by trade. Prior to a series of back and shoulder injuries sustained in 2018, he operated Cesare’s Plumbing Ltd. It is common ground between the parties that Mr. Sherbo is currently unable to work and, as such, his only source of income at present is derived from WCB disability benefits of $2210, biweekly, or $57,460 net per annum. Cesare’s Plumbing Ltd. was wound up after Mr. Sherbo went on long-term disability. There is no dispute that there are no assets remaining in the business. [ 7 ] Ms. Sherbo was employed as the bookkeeper for the company prior to the parties’ separation.

She has been employed with the Calgary Board of Education as a lunch room supervisor since September 2020, and currently works five hours a week at $22.50 per hour. Her employment is for ten months per year and she can work for up to a maximum of ten hours per week. Other than some casual bookkeeping employment, Ms. Sherbo has not been gainfully employed since the parties separated in October 2015. [ 8 ] The parties attended before a Child Support Dispute Resolution Officer [”DRO”] on April 16, 2020.

The Report filed on April 17, 2020, states that the “Parties agree to interim without prejudice variation of existing child support order. Details to be dealt with by counsel.” The Report also stipulates that the “Parties to discuss exact terms further. General agreement reached.” According to Mr. Sherbo, the parties agreed at the DRO to a reduction in monthly child support payment to $350. Ms. Sherbo, on the other hand, insists that no agreement was reached at the DRO. [ 9 ] Mr. Sherbo’s 2019 Line 150 income is stated to be $73,729, an amount that included $976.87 in RRSP income. Deducting the RRSP income, Mr.

Sherbo’s 2019 income for the purposes of determining child support was $63,968.13, corresponding to a monthly child support payment of $928.72. [ 10 ] At the time of separation, the parties entered into a Separation Agreement. Pursuant to the Agreement, Mr. Sherbo remained in the matrimonial home. The parties agree that there was no equity in their home at the time of separation. The home is currently listed for sale and Mr.

Sherbo believes that there may be approximately $80,000 in equity in the home, though he notes in one of his affidavits that the listing price has been reduced five times since the property went on the market. Since the date of separation, Ms. Sherbo has been living with her mother, who retired approximately four months ago as a HR consultant. [ 11 ] By the terms of the Separation Agreement, Ms. Sherbo relinquished any share in any of the matrimonial assets in return for Mr. Sherbo’s assumption of all of the matrimonial debt. Ms.

Sherbo also gave up any claim to spousal support that might have been determined to be owing in the circumstances. Ms. Sherbo did, however, assume responsibility for a $10,000 personal loan owing to her mother. Analysis [ 12 ] Ms. Sherbo seeks to recalculate Mr. Sherbo’s Guideline Income and corresponding monthly child support obligations back to November 2019. In light of the fact that Mr.

Sherbo is no longer able to work, is financially reliant on WCB disability benefits, as well as the fact that the parties are now in a 50-50 shared parenting arrangement, I am satisfied that there has been a change in circumstances so as to justify a review of the child support provisions contained in the Divorce Judgment: Divorce Act , s 17(4); Alberta Child Support Guidelines (“ Guidelines ”), s 14(a). [ 13 ] As previously indicated, Mr. Sherbo’s 2019 Guideline Income was $63,998.13, corresponding to a monthly child support payment of $928.72. For the year 2019, Mr.

Sherbo should have paid a total of $9,198.44, consisting of ten months at $733 per month, the amount specified in the Divorce Judgment, and two months at $928.72 per month, the amount corresponding to his recalculated Guideline Income of $63,998.13. On the evidence before me, it is not entirely clear how much Mr. Sherbo actually paid in 2019. [ 14 ] For 2020, and on an on-going basis, I set Mr. Sherbo’s Guideline Income at $77,000, based on net income of $57,460 received from WCB disability benefits.

The parties agree that this amount should be grossed-up to account for the fact that this income is tax free, and that the appropriate grossed-up figure is $77.000. This corresponds to a monthly s 3 child support obligation of $1,124. This amount is subject to any set-off amount payable by Ms. Sherbo on any income to be imputed to her. [ 15 ] Mr. Sherbo relies on the agreement that he says was reached at the DRO on April 17, 2020, reducing his monthly child

support to $350. While Ms. Sherbo disputes that any such agreement was reached, the report prepared following the DRO supports Mr.Sherbo’s contention in this regard. I also find that Ms. Sherbo did not file her Notice to Attend Docket Court seeking to vary the amountof child support payable by Mr. Sherbo until August 28, 2020, more than 4 months after the conclusion of the DRO. During the oralhearing of this matter, counsel for Ms. Sherbo was unable to point to any written communication prior to August 28, 2020, in which Ms.Sherbo signalled her disagreement with Mr.

Sherbo’s contention that an agreement to reduce child support was reached at the DRO. [16] In these circumstances, I find that the parties did reach an agreement at the DRO, albeit a temporary agreement, though it isclear that Ms. Sherbo had a change of heart after-the-fact. Subject to any determination to be made relative to Mr. Sherbo’s request forrelief on account of undue hardship, for the months of May-August 2020, inclusive, I would set Mr. Sherbo’s child support at $350 permonth. [17] As of January 1, 2020, the parties commenced a 50-50 shared parenting arrangement.

As such, s 9 of the Guidelines directsthe calculation of a set-off amount involving the applicable monthly child support payment owing by each of the parents. The calculationof any set off amount falls to be determined, at least in part, on the basis of the results of my consideration of Mr. Sherbo’s application toimpute income to Ms. Sherbo. Should income be imputed to Ms. Sherbo? [18] The leading case in Alberta on the imputation of income as per section 19(1)(

a) of the Guidelines, is Hunt v Smolis-Hunt,2001 ABCA 229 [Smolis-Hunt]. [19] The majority decision sets out a number of important principles that assist in the proper application of s. 19(1)(

a) of theGuidelines. First, judges have limited discretion to deviate from the Guidelines and, as such, the Guidelines have been likened to aformula, rather than true guidelines. Second, parents are not required to maximize their earning capacity for the purposes of theGuidelines. One of the purposes of the Guidelines is to provide children with a fair level of support, not the maximum standard ofsupport which the parents are capable of providing. Third, only deliberate unemployment or under-employment should ground adetermination of unemployment or under-employment for the purposes of s. 19(1)(a); [20] At para 42, the majority articulated the following test for imputing income: The

section should be interpreted to impute income where the obligor has pursued a deliberate course of conduct for the purpose ofevading child support obligations. We read the

section as requiring either proof of a specific intention to undermine or avoid supportobligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her supportobligations. [21] The majority in Smolis-Hunt went on to acknowledge that proof of intention “is a difficult evidentiary burden and usuallyreserved for situations where culpability is a concern”: at para 26. Citing the decision of Martinson J. in Hanson v Hanson, (BC SC), [1999] B.C.J.

No. 2532 (Q.L.) (S.C.), the Court went on to find that proof of culpability is not required to prove the intentto evade support obligations. As such, the Court found that “the intent to evade support obligations may also be found where theunemployed, under-employed or other acts of the obligors indicate a deliberate refusal to live up to the obligations to support one’schildren” at para 26. [22] The minority decision of Picard JA focused on the question of “reasonableness”, finding that “a payee need not prove that thepayor is intentionally avoiding or evading support obligations”: at para 64.

Picard JA continued, again at para 64, as follows: The starting point is the capacity of the payor to earn income. The question is: in the circumstances, and with reasonableness as the test,what is the capacity of the payor to provide support for a child? A court can then compare that answer to the evidence of what the payoris currently earning and come to a conclusion as to whether he or she is under-employed.

In some cases, it may be appropriate todetermine whether that under-employment is acceptable because of educational or health needs of the payor or the needs of infantchildren. [23] The Court of Appeal has interpreted and applied its decision in Smolis-Hunt on a number of occasions. For example, inKeating v Keating, 2017 ABCA 428 [Keating], the Court held, at para 8: The appellant submits that the trial judge erred by not making a finding of “bad faith” before imputing income.

We disagree; there is nosuch requirement in Alberta: [Smolis-Hunt] at paragraph 47. “While mala fides is not specifically required, all the circumstancesdescribed in s. 19(1)(a)-(

i) permit the court to rectify a situation where the obligor is subverting or taking advantage of the generalprovisions in the Guidelines to the detriment of the child”: para 48. Without more, unreasonable unemployment or underemployment isinsufficient to impute income: para 71. An intent to evade support obligations may be found if “the unemployment, underemployment orother acts of the obligor indicate a deliberate refusal to live up to the obligation to support one’s children”: para 73.

Moreover, if it isapparent from the evidence that the payor lives comfortably yet declares minimal income, income may be imputed: Fleury v Fleury,2009 ABCA 43 at para 41, 448 AR 92. [24] In Keating, the Court of Appeal acknowledged that “[a]ppellate courts in other provinces (British Columbia, Manitoba,Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Quebec and Saskatchewan) have adopted a different approach.” TheCourt continued, at para 10, explaining that “[I]n those jurisdictions the reasonable tests governed; that is, the court considers what isreasonable under the circumstances.

The payor’s age, education, experience skills, health and other obligations are considered as is theavailability of work and the freedom to relocate, all in the context of parents’ legal obligation to maintain their children.” [25] I am, of course, bound by the decision of the Alberta Court of Appeal on this particular issue. As such, I must apply theSmolis-Hunt decision in terms of the proper

interpretation and application of s 19(1)(

a) of the Guidelines. I would, however, respectfullyrequest the Court of Appeal to reconsider this decision in light of the compelling reasons that exist to follow the decisions of otherappellate courts in Canada.

[ 26 ] I would also refer to the decision of Coutu J in Bartel v Evans , 2002 CarswellAlta 974 (ABQB) [ Bartel ] . In that instance, the court found an intention to evade support obligations in the father’s decision to quit his $74,000 per year job to earn an income of between $15,000 and $20,000. In such circumstances, the court was prepared to infer the necessary intent on the basis of the father’s intentional decision to attempt to transfer his support obligations to the children’s mother. [ 27 ] In this instance, Ms.

Sherbo offers minimal evidence regarding any efforts she has made since the date of separation to find employment outside of the home. While she deposes that she has had a “very difficult time finding employment due to the time required to care for the children”, she provides no concrete evidence of any efforts to search for employment. She refers only to “occasional income as a bookkeeper” from the date of separation until September 2020, when she was hired as a casual lunch room supervisor. She currently works five hours per week. [ 28 ] I have difficulty with Ms.

Sherbo’s contention that the time requirements associated with the care of the children have seriously interfered with her ability to find work. Since September, she has only had the children 50% of the time. Before that, the daily activities listed in her affidavit sworn October 29, 2020, reads like the typical activities of any parent who has parenting responsibilities for children.

There is nothing in this material that supports a conclusion that the special needs of these two children significantly interfere with her ability to work outside the home and to contribute financially to their support. [ 29 ] Since 2018, Ms. Sherbo has been aware of Mr. Sherbo’s physical condition that renders him incapable of working in his field. On the evidence before me, there is no suggestion that Ms. Sherbo questions or challenges Mr. Sherbo’s assertion that he is unable to undertake work of any kind at the present time. Despite this knowledge, as well as the knowledge that Mr.

Sherbo took on all significant matrimonial debt at the time of separation, Ms. Sherbo has taken no steps to support herself or, more significantly, to make any contribution to the financial support of the children. As in Bartel , Ms. Sherbo has, in effect, transferred her support obligations to the disabled, financially struggling, father of the children. [ 30 ] In all of the circumstances, I am satisfied that Ms. Sherbo’s conduct supports the inference that she is deliberately refusing to live up to the obligation to financially support her children. Having drawn such an inference, I find that Ms.

Sherbo is intentionally evading her support obligations. I would impute income to Ms. Sherbo in the amount of $35,000 per year, effective November 1, 2019, corresponding to a monthly child support payment of $524. [ 31 ] Earlier in these reasons, I found that Mr. Sherbo’s monthly child support obligation in 2020 was $1,124, based on a Guideline Income of $77,000. I would off-set this amount by $524 per month, the amount of child support payable by Ms. Sherbo based on an imputed income of $35,000. This results in a net monthly payment of $600, commencing January 1, 2020, on an on-going basis. Is Mr.

Sherbo entitled to relief on account of undue hardship? [ 32 ] The topic of undue hardship is addressed in s. 10 of the Guidelines as follows:

(1) On either parent’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3, 4, 8 or 9 if the court finds that the parent making the request, or child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a parent or child to suffer undue hardship include the following: (

a) the parent has responsibility for an unusually high level of debts reasonably incurred to support the parents and their children prior to the separation or to earn a living;…

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent who claims undue hardship would, after determining the amount of child support under any of sections 3, 4, 8, or 9, have a higher standard of living than the household of the other parent.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule 2.

(5) Where the court awards a different amount of child support under subsection (1), it may specify in the child support order a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount of support payable the end of that time.

(6) Where the court awards a different amount of child support under this section, it must record its reasons for doing so. [ 33 ] It is significant, in my view, that the Guidelines , both Federal and those pertaining to Alberta, are considered to be a floor, not a ceiling. The decided cases on the point make it clear that the threshold for finding undue hardship is high. Something more is required than simply an allegation that the payor cannot afford to pay the Guideline amount.

A claimant seeking relief on the basis of undue hardship must not only establish a lower household standard of living, but also that he or she falls within one of the enumerated circumstances (or an analogous circumstance) set out in subsection 2 of the Guidelines . [ 34 ] Mr. Sherbo relies on the decision of the Alberta Court of Appeal in Hanmore v Hanmore , 2000 ABCA 57 [ Hanmore ], (leave to appeal to the SCC refused [2000] SCC No. 182), in support of his application for relief on account of undue hardship. In Hanmore , the Court of Appeal articulated a two-part test.

First, has the applicant established undue hardship in the sense that it would be challenging for the payor to pay full child support? Second, would the applicant’s household enjoy a lower standard of living than the payee if child support were not reduced? [ 35 ] In Hanmore , at para 9 , the Court, after reviewing a series of authorities dealing with the undue hardship provision set forth in the Federal Child Support Guidelines , stated as follows:

...The applicant who seeks a reduction on grounds of undue hardship must satisfy a two- stage test. The first stage requires the applicantparty to prove specific facts establishing undue hardship. S.10(2) sets out a non-exhaustive list of circumstances that may give rise tosuch a claim. If undue hardship is established, the applicant must show that his or her household would enjoy a lower standard of livingthan the household of the other parent should child support not be reduced.

However, even where such a finding is made, the Courtretains a discretion to refuse to reduce the guideline amount. [36] The Court of Appeal went on, at para 17, to elaborate on the heavy burden resting on an applicant to establish undue hardship. It is evident from these authorities that the burden of establishing a claim of undue hardship is a heavy one. We agree with the commentof Wright, J. [Messier v. Baines, (SKQB)] that the objectives of the Guidelines will be defeated if Courts deviatefrom the established guidelines without compelling reasons. The hardship must be more than awkward or inconvenient.

It must beexceptional, excessive, or disproportionate in the circumstances. Further, it is not sufficient that the payor spouse has obligations to anew family or has a lower household standard of living than the payee spouse. The applicant must specifically identify the hardshipwhich is said to be undue. A general claim regarding an inability to pay or a generic reference to the overall expense of a new householdwill not suffice.

We adopt the words of Prowse, J.A., in Van Gool [51] The onus is on the party applying under s. 10 to establish undue hardship; it will not be presumed simply because the applicant hasthe legal responsibility for another child or children and/or because the standard of living of the applicant’s household is lower than thatof the other spouse. The applicant must lead cogent evidence to establish why the table amount would cause undue hardship. [37] In Kelly v Kelly, 2011 BCCA 173, the British Columbia Court of Appeal provided useful guidance on the second stage of thetest.

At para 34, the Court found: If, and only if, this first requirement is met, the second step engages a comparison of the standard of living of each parent’s householdunder s. 10(3) of the Guidelines, to ensure the payor of child support will not have a higher standard of living than the recipient if areduction in Guidelines support is made. [38] While the hardship provisions of the Guidelines are most frequently invoked in circumstances where a payor has child supportobligations for children resulting from more than one relationship, it is by no means limited to such circumstances.

In my view, Mr.Sherbo is entitled to rely on these provisions if he meets the statutory requirements. [39] For a fulsome outline of the various authorities touching on the proper

interpretation and application of s. 10(3) of theGuidelines, please see the decision of Hoegg JA in Locke v Goulding, 2012 NLCA 8. [40] I am satisfied that Mr. Sherbo has established undue hardship in this instance on the basis of his recent disability, his resultingdependence on WCB Disability Benefits as his sole source of income, and the fact that he continues to be responsible for unusually highlevels of debt incurred during the marriage. I am also satisfied that he has demonstrated that he has, and will continue to have, a lowerstandard of living than Ms. Sherbo if child support is not reduced. [41] Mr.

Sherbo provided his monthly budget, including his monthly payments towards debt, including matrimonial debt. I wouldsummarize this monthly budget information as follows: 1. Mortgage (bi-weekly payments of $796.36) $1592.72 2. Property taxes $178.51 3. Utilities $452.21 4. Telephone $139.60 5. Insurance (House/Vehicle) $506.75 6. Garden/Snow removal $204.75 7. Groceries $450 8. External meals $80 9. Toiletries/Sundries $30 10. General household supplies $50 11. Child Support $600 12. Children’s Clothing $210 13. Vehicle maintenance $45 14. Gas/oil $320 15. Parking $40 16. Car loan payment $666.69 17.

Uninsured medical/dental expenses $787.50

18. Optometric $125 19. Gifts $25 20. Entertainment $34 21. Liquor/Cigarettes $200 22. Club Dues $26.25 23. Dog food $233 24. Savings 0 25. RRSP Contributions 0 TOTAL $6,996.98 [ 42 ] The materials before me also contain a copy of Mr. Sherbo’s Statement of Income, Assets and Liabilities completed at the time the parties entered into the Separation Agreement. At the time of separation, the parties had a debt of $60,000 on a line of credit. According to Mr.

Sherbo, he paid off the line of credit by increasing the mortgage on the matrimonial home; explaining, at least in part, the amount of his current bi-weekly mortgage payments. The Statement of Income, Assets and Liabilities also reveals debt totalling $127,000 then existing in relation to three different motor vehicles. In accordance with the terms of the Separation Agreement, Mr. Sherbo assumed responsibility for this and other matrimonial debt.

There is, unfortunately, no evidence before me as to how he was able to reduce or pay off this debt, other than his continuing car payment of $666.69 set out in his monthly budget. [ 43 ] There is also no evidence before me regarding the specifics of Mr. Sherbo’s business debt at the time of separation. I do, however, accept his general representations that his business only ever had limited assets and regular debt. [ 44 ] Mr. Sherbo also has other monthly payments towards debt that are not fully reflected in his monthly budget. Specifically, he has credit card debt to both Mastercard ($1500) and Visa ($46,000).

He has minimum monthly payments of $35 on his Mastercard and $700 on his Visa. Adding these amounts to his monthly budget results in a total monthly budget of $7,731.98. [ 45 ] His total monthly income is $4,188.33, calculated on the basis of an annual net income from WCB Disability payments of $57,460, less child support payments of $7,200 per year, leaving actual income of $50,260, or $4,788.33 net income per month. His monthly deficit amounts to $3,543.65. [ 46 ] Ms. Sherbo, on the other hand, has an annual imputed income of $35,000. In determining Ms.

Sherbo’s household income, I would deduct $5000 from this amount to account for income tax payable on this amount, leaving a net income of approximately $30,000. In addition, she receives approximately $7,200 per month in child support that is not subject to tax. She also receives the Child Tax Benefit, together with disability benefits for one of the children totalling $1,191 per month, or $14,292.00 per year, also not subject to tax. Based on these amounts, I would calculate her total household income to be approximately $51,492, or $4,291 per month. [ 47 ] Ms.

Sherbo did not provide a monthly budget in the materials filed in relation to her application or as part of her response to Mr. Sherbo’s cross-application. She also provided no information regarding her mother’s income as a component of her household income. Her response materials, including the Concise Letter filed on December 17, 2020, does not address Mr. Sherbo’s application seeking relief on account of undue hardship. No oral submissions were advanced during the hearing of this matter by Ms. Sherbo’s counsel in this regard. The limited information that has been filed relating to Ms.

Sherbo’s financial circumstances includes details of her part-time employment with the Calgary Public School Board, the monthly amount she receives by way of the Child Tax Benefit, and the fact that she has resided with her mother since the date of separation. The parties Separation Agreement reveals that Ms. Sherbo assumed responsibility for a personal debt to her mother in the amount of $10,000, though all other outstanding matrimonial debt was, as previously indicated, assumed by Mr. Sherbo. [ 48 ] Under the circumstances, I am prepared to infer that, through her counsel, Ms.

Sherbo was aware that the hardship application filed by Mr. Sherbo would necessarily involve a comparison of household incomes. In the absence of any response to this issue, I conclude that she does not challenge Mr. Sherbo’s budget and income information and, moreover, that she concedes that his household income is less than her household income. While I acknowledge that it would appear that Mr. Sherbo has a slightly greater monthly household income than Ms. Sherbo, I find that his very significant recurring monthly deficit results in him having a lower household income than Ms.

Sherbo. [ 49 ] In light of my finding that Mr. Sherbo has met the onus of establishing undue hardship, I would exercise my discretion to reduce his child support by 50% to $300 per month, retroactive to November 1,

Section 7 expenses [ 50 ] Ms. Sherbo invites the court to order Mr. Sherbo to pay his proportionate share of the

section 7 expenses incurred in relation to tutoring for both children. She also seeks reimbursement for the costs of counselling for both children. With respect to tutoring for D, she attaches receipts totaling $1125. Receipts totaling $420 are appended to her affidavit in relation to the cost of tutoring for M. Mr. Sherbo maintains that he did not agree to these expenses in advance. [ 51 ] Counselling for Dominic cost the total of $1200 for eight sessions that took place between March 2020, and June 2020. Mr. Sherbo acknowledges that he agreed that D. required counselling. He acknowledges his financial responsibility for his proportionate

share of this expense. He explains that he has not covered this expense to date on account of the fact that the service provider would not accept payment by credit card. [ 52 ] In light of my earlier conclusions, I would vary the terms of the Divorce Judgment and direct that the parties share on a proportionate basis in accordance with their respective incomes all eligible s 7 extraordinary expenses that have been agreed to in advance on the basis of 69% payable by Mr. Sherbo and 31% payable by Ms. Sherbo. [ 53 ] With respect to the cost of counselling, I would direct that Mr. Sherbo pay Ms.

Sherbo his proportionate share, specifically $828.00. Given that Ms. Sherbo incurred the cost of tutoring for both children without Mr. Sherbo’s prior consent, I decline to make an order requiring him to assume his otherwise proportionate share of this expense. On a go-forward basis, I would direct that the parties must agree in advance to any expense to be incurred by either parent will be subject to parental sharing. Any s. 7 expense that has not been agreed to in advance by both parents may still be pursued by the requesting parent, but no claim may be made for the sharing of that expense.

Conclusion [ 54 ] For the foregoing reasons, I would set Mr. Sherbo’s Guideline Income for 2019 at $77,000, an amount that would dictate monthly s. 3 child support at $1,124. [ 55 ] I would also impute income to Ms. Sherbo in the amount of $35,000 per annum retroactive to November, 2019, the same date identified by Ms. Sherbo for the purposes of recalculation. As of January 1, 2020, the date on which the parties entered into a 50-50 shared parenting arrangement, in accordance with s. 9 of the Federal Child Support Guidelines , I would set-off Ms. Sherbo’s s. 3 child support of $1,124/month against Mr.

Sherbo’s s. 3 child support of $524/month, leaving Mr. Sherbo with a monthly payment of $600. [ 56 ] Mr. Sherbo’s otherwise determined monthly child support payment of $600 is, however, reduced to $300/month on account of undue hardship retroactive to November 1, 2019. [ 57 ] Based on these revised calculations, Mr. Sherbo should have paid a total of $9,198.44 in child support in 2019, ten months at $733 per month and two months at $928.72. Given the uncertainty as to the amount that Mr.

Sherbo actually paid in 2019, the parties are given leave to seek further direction from the court if they are unable to come to an agreement regarding overpayment or underpayment. [ 58 ] For 2020, Mr. Sherbo should have paid a total of $3,600. Again, there is some uncertainty in the materials submitted as to the amount that Mr. Sherbo actually paid in 2020. Again, the parties are given leave to seek further direction from the court if they are unable to come to an agreement in this regard. [ 59 ] Mr.

Sherbo is directed to pay the amount of $828 in respect of outstanding s. 7 extraordinary expenses relative to counselling for one of the children. Costs [ 60 ] In both the application and cross-application, the parties seek costs. While both parties were successful in their respective applications, I am of the view that Mr. Sherbo enjoyed relatively greater success overall in the resolution of these matters. As such, I would award him costs of $1000. Heard on the 21 st day of January, 2021. Dated at the City of Calgary, Alberta this 2 nd day of February, 2021. M. David Gates J.C.Q.B.A. Appearances: S.

Moldowan For the Applicant/Respondent by Cross-Application E. Varga

For the Respondent/Applicant by Cross-Application (Ms. Varga filed a Notice of Ceasing to Act subsequent to the filing of the Concise Letter, but prior to the actual hearing of this matter.) Cesare Angelo Sherbo Self-Represented Litigant/Respondent/Applicant by Cross-Application