Wilgenbusch v Girard, 2021 ABQB 801

Court of Queen’s Bench of Alberta Citation: Wilgenbusch v Girard, 2021 ABQB 801 Date: 20211006 Docket: FL12 001858 Registry: Wetaskiwin Between: Alexus Wilgenbusch Applicant - and - Douglas Girard Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] Unmarried parents of a currently-shared-parented kindergarten-age child each seek primary parenting.

They also dispute the appropriate ongoing and retroactive child and spousal support. [ 2 ] I find that primary parenting should shift to the mother until the father relocates, following which equal-shared parenting will continue, that (subject to any adjustments arising from further disclosure by the father) no retroactive child support is payable, that such

further disclosure is needed before ongoing child support can be set, and that further submissions are required on spousal support. B.

Parenting [ 3 ] The answer here is clear: the current equal-shared parenting should continue once the father relocates (as discussed further below), in light of: • the father’s material parenting contributions during the 2.25 years from the child’s birth to the parties’ separation (even recognizing that the mother’s daytime-parenting undoubtedly was more demanding than the father’s “night-shift” role); • any “extracurricular under-support” by the mother being explained (at least in part) by her two interim moves (discussed further below) and (again in part) by the distance between the parties’ current residences.

Plus, the evidence does not signal that the mother will not support the child’s ongoing and future extracurricular activities; • while the child is probably more familiar with Millet and activities centered there, he is young enough (kindergarten age) that he will likely transition easily to an Edmonton – St.

Albert mileu, including making new school and activity friends without too much trouble; • the fundamental fitness and capability of both parents to play an equal-shared-parenting role; • the desire of each to play a central role in parenting; • their mutual recognition that both parents should be significantly involved in parenting; • in fact, their “bottom line” mutual support for shared parenting (mother: “[I am] not opposed to shared parenting as long as it is practicable for the parties to have a shared-parenting schedule”; father: “in ideal circumstances, the parties would continue with a shared parenting arrangement” – more on those circumstances below); • the mother’s earlier-in-separation multiple residential moves having been sufficiently explained (i.e. not reflecting any personal instability), plus her apparently now-well-anchored current residence; • the diverse strengths each can bring to parenting (in light of their respective “parenting role” descriptions in their affidavits); • the apparent ability of the child to thrive in each household; and • the now-three-year status quo of equal-shared parenting, which (while not without its difficulties) seems to have worked generally well. [ 4 ] The wrinkle here is that, with the child now kindergarten age, and with both parents recognizing that he should be enrolled in a kindergarten program, and with the father residing in Millet and the mother in St.

Albert, too much time would be spent commuting to and from school for one parent, depending on whether the child is enrolled in Millet (or Leduc) (the father’s preference), or in St. Albert (the mother’

s) i.e. if equal-shared parenting is directed and both parties continue their present residences. [ 5 ] The theoretical solution -- that one parent moves sufficiently closer to the other that the school commute will not be a hardship for the child and the longer-driving-time parent -- is, fortunately, also one that is workable here: the father has expressly stated that, if St. Albert is selected as the school location, he will (by the time the child starts Grade 1) move into Edmonton, where his new partner works and where he does some of his work (work divided between Edmonton and Millet).

In his words, “… should [the Court] grant the mother primary residential care, it will be my intent to move much closer to [where the mother and son will live] by the time [he] enters grade 1.” [ 6 ] As the father generously put it: “Although I firmly believe that Millet is more in [our son’s] best interests than St. Albert, I believe a 50/50 childcare plan is even more important.” [ 7 ] Accordingly, I do not have to determine whether the father previously committed to moving.

His current flexibility is the key here, opening the door to the continuation of the equal-shared parenting that seems to have worked generally well and which I find is in the child’s best interests. [ 8 ] Accordingly, I approve enrolment of the child at a St. Alberta kindergarten. [ 9 ] Until the father relocates to or otherwise arranges accommodation in Edmonton or St. Albert, the mother shall have primary parenting of the child on school days. [ 10 ] Until he relocates or otherwise arranges such accommodation, the father will have primary parenting on both standard and holiday weekends (e.g.

Thanksgiving, Family Day, Easter, and Victoria Day), as well as any long weekend resulting from school professional-development, teachers’ convention, or similar days. (One exception is the weekend of October 16-17, when the mother is getting married.) [ 11 ] If the parties are unable to agree on parenting time over any fall full-week break, Christmas break, spring break, or the 2022 summer holiday, I will provide directions after receiving their respective proposals (due (as necessary) by October 15 th ).

And same for transition times and places. [ 12 ] Once the father either relocates or otherwise arranges accommodation, equal-shared-parenting time will resume.

C. Child support [ 13 ] The mother seeks both retroactive and ongoing child support. The father has been paying $200 monthly since March 2021 on an interim “pre-disclosure” basis. Neither party paid child support to the other before that despite the separation in August 2018.

Retroactive support (August 2018 to January 2021) [ 14 ] On the retroactive front, the mother seeks support from the time of separation, through to late January 2021, when she filed her application for various relief, including child support. [ 15 ] What principles govern the availability of retroactive child support in an original (i.e. first) application? [ 16 ] In DBS v SRG , 2006 SCC 37 , the Supreme Court of Canada confirmed the potential availability of such support in that circumstance: ... in this [first-application context], the status quo does not involve any existing payment of child support.

This fact immediately differentiates the present context in a very important way: absent special circumstances (e.g., hardship or ad hoc sharing of expenses with the custodial parent), it becomes unreasonable for the non-custodial parent to believe (s)he was acquitting him/herself of his/her obligations towards his/her children. The non-custodial parent’s interest in certainty is generally not very compelling here. Jurisdiction to award retroactive child support in this circumstance is found in s. 15.1 of the Divorce Act and s. 16 of the Parentage and Maintenance Act .

In the Alberta statute, the legislature simply decrees that an order may be made for payments for the maintenance of the child . Similarly, in the Divorce Act , Parliament allows a court to make “an order requiring a spouse to pay for the support of any or all children of the marriage”: s. 15.1(1) .

There is therefore no restriction in either statute as to the date from which the court may order that the award take effect. [The Family Law Act , which applies in the present case, [fill in ...] is akin to the note provincial provision i.e. is also open-ended, with no restriction against retroactive operation.] In my view, the legislatures left it open for courts to enforce obligations that predate the order itself. This

interpretation is consistent with the Guidelines , which are meant to “establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation” ( s. 1 ( a )).

So long as the court is only enforcing an obligation that existed at the relevant time, and is therefore not making a retroactive order in the true sense, I see no reason why courts should be denied the option of making this sort of award . ... ... the presumptive date of retroactivity should not be the date of separation; but in certain circumstances, a court acting under the federal power will find it appropriate to make a child support order from this date, and it will have the jurisdiction to do so. ...

The defining feature linking the present appeals is that an application for child support — either as an original order or a variation — could have been made earlier, but was not.

The circumstances that surround the recipient’s choice (if it was indeed a voluntary and informed one) not to apply for support earlier will be crucial in determining whether a retroactive award is justified . [paras 80-82, 93 and 100] [emphasis added] [ 17 ] The Supreme Court then outlined the often-applied four-factor test for gauging whether retroactive support is payable (reasonable excuse for delay; payor’s conduct; child(ren)’s circumstances; and undue hardship). [ 18 ] The critical factor in the present case is the payor’s conduct : • as noted, the father did not pay child support to the mother until starting $200 monthly payments in March 2021.

That is, factoring out the initial few weeks (when the father had full-time care of the child), which I will assume meant until the start of October 2018, the father did not pay child support to the mother for approximately 2.5 years; • however, during that period, the parties did equal-share parenting , meaning that (per s. 9 of the Child Support Guidelines ), each had an obligation to pay child support to the other; • the evidence is not entirely clear on when the father first provided income disclosure (even partial).

However, he has now provided the following income data for 2018, 2019 and 2020 : ° 2018 : gross business income of $38,650; net business income of $27,471.62; ° 2019 : gross business income of $22,587.90; net business income of $12,735.06; and ° 2020 : line 15000 income of $9,755; • contrast these figures to the mother’s disclosed income for 2018 and 2019 of $29,870, and $13,377, respectively. (She did not provide tax-return or assessment information for 2020); • assuming the father’s net figures fairly reflect his ability to pay child support, no child support would have been payable by the father to the mother in either 2018 or 2019 , with the mother, as the higher income earner, bearing the net child support obligation i.e.

having to pay support to the father, assuming a straight set-off approach under s. 9 of the Guidelines . (The father did not ask the mother to pay child support, retroactive or otherwise); • assuming none of the father’s deductions (reducing his gross income to net) were justified, his income would have exceeded the mother’s in 2018 by only $8,000, and approximately the same for 2019, and it is unlikely that all of his claimed business expenses were illegitimate for child-support-calculation purposes i.e. that all of them would end up being factored out entirely; • as for 2020, the father’s ostensible income fell below the “floor level” of child-support-payable income (i.e. $12,000, per the Guidelines for Alberta); • the mother’s own evidence reflects uncertainty about who owed, or might have owed, child support to whom.

Per her January 18, 2021 affidavit: “We had many short conversations regarding child support [no details provided of when] but neither party has even been able to agree on [to whom] and how much child support should be paid, so not child support has been paid by anyone ”; • the mother argued that the father’s reported income did not reflect his actual (higher) income, but she provided no material evidence to anchor her assertions of a separate stream of income from a claimed business partner (only a bank statement reflecting a one- time and modest (approximately $680) payment of unknown character), of “other bank accounts” and unexplained banking activity (no bank statements or other documentary evidence), or of an asserted (“must have earned”) 2018 income of $39,000 (again, no documentary evidence); • she posed the question of how someone earning such an apparently meagre income could afford the mortgage payments apparently required on the father’s residence, but then answered her own question by acknowledging the very material inflows from the father’s parent(s) , who have been providing material financial assistance to him for years; • the mother did not put into evidence when she first asked the father for income information i.e. if any demand or request was made before filing her application for various relief (including child support) in January 2021; and • the father has been paying full-freight for various section-7-type expenses for the child i.e. with no contributions by the mother. [ 19 ] All to say: the father’s child-support-related conduct from the time of separation (August 2018) to the start of 2021 was not subpar in any material way.

Expressed differently, he did not engage in any “blameworthy conduct” here i.e. in not paying direct child support until March 2021. [ 20 ] In all the (detailed above) circumstances, it was reasonable for him to proceed on the basis that no child support was payable by either parent to the other in this shared-parenting context. [ 21 ] I contrast this to the circumstances in Mortson v Kminkova , 2021 ABQB 476 , where Malik J. ordered child support back to the date of separation.

He emphasized the payor’s blameworthy conduct in not paying child support where the obligation was clear and known (actually or reasonably) : I find that while the Applicant did not actively seek to avoid his support obligations , he knew or ought to have known that he was obliged to pay the Respondent child support , particularly during the time during which the parties’ child primarily resided with the Respondent. Having failed to do so constitutes blameworthy conduct .

In so finding, I am supported by the Court’s comments regarding blameworthy conduct in Henderson [ v Micetich , 2021 ABCA 103 ] at paras 49-57. ... In not having to pay

section 3 support, the Applicant effectively privileged his interests over that of the parties’ child ( Henderson at para 55 ). Given how long the Guidelines have been in place, it is untenable in my view for parents to claim ignorance of their support obligations that they know is otherwise payable without formal notice or court order. Simply put, a payor parent who avoids his support obligations should not be allowed to profit from such conduct ( DBS at para 107 ). ... I cannot endorse the Applicant’s knowingly wilful blindness of his support obligations .

In my view, a payors parent’s passivity in addressing their support obligations that they knew or ought to have known was payable in support of their child constitutes blameworthy conduct.

While there is no evidence that the Applicant actively concealed his financial information (which would largely have been known to the Respondent in any event) or otherwise deliberately refused to acknowledged his support obligations, the Applicant’s failure to pay child support is blameworthy in itself , irrespective of the Respondent’s lack of subjective intent.[paras 33, 37 and 39] [emphasis added] [ 22 ] See also (in similar contrast) Veit J.’s decision in Piepgrass v Pritchard , 2002 ABQB 319 , where she emphasized the payor’s knowing that support was due and even the amount (known or knowable): Ms.

Pritchard has testified that, from the date of separation, she continually requested both child support and indeed spousal support from Mr. Piepgrass. I accept that evidence. Therefore, this is a situation in which Mr. Piepgrass realized, from the time of separation, that he had an ongoing obligation to support his son; Mr. Piepgrass knew what his own income was, and it was easy for him to determine what the Canadian guidelines on child support were . The fact that he frequently made monthly payments of $1,000, which is in the range of what would have been ordered under the Guidelines, establishes that Mr.

Piepgrass always understood the general nature of his support obligation to his son. Therefore, his child support obligation should be made retroactive to the time of separation , which I will take to be October 1, 1997. ... [para 48] [emphasis added] [ 23 ] Fundamentally, even if a review of pre-2021 child support were appropriate, the income evidence here does not show that any support was due from the father to that point, or at least beyond that which he provided by covering

section 7 (and possibly other direct)

expenses. [ 24 ] Having said that, I am prepared to reconsider the retroactive-support request if the father’s follow-up disclosure (discussed below) shows any material income differences i.e. from his reported-so-far incomes for 2018-2020.

Ongoing child support [ 25 ] As noted, the mother filed her child-support (and other relief) application in late January 2021. [ 26 ] That triggered disclosure obligations for the father, per ss 21(2) of the Guidelines : A spouse who is served with an application for a child support order and whose income information is necessary to determine the amount of the order , must, within 30 days after the application is served if the spouse resides in Canada or the United States or within 60 days if the spouse resides elsewhere, or such other time limit as the court specifies, provide the court, as well as the other spouse or the order assignee, as the case may be, with the documents referred to in subsection (1). [ 27 ] Here is ss 21(1) i.e. the list of the required documents (or at least those elements that apply here): 21

(1) A spouse who is applying for a child support order and whose income information is necessary to determine the amount of the order must include the following with the application: (

a) a copy of every personal income tax return filed by the spouse for each of the three most recent taxation years ; (

b) a copy of every notice of assessment and reassessment issued to the spouse for each of the three most recent taxation years; (

d) where the spouse is self-employed , for the three most recent taxation years (

i) the financial statements of the spouse’s business or professional practice, other than a partnership, and (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length; [ 28 ] As noted, while the father filed some information, he did not file his tax return, notice of assessment or financial statements for 2017, notice of assessment or financial statements for both 2018 and 2019, or tax return or financial statements for 2020. [ 29 ] I direct the father to provide the identified information to the mother’s counsel, with a copy to the Court (via my assistant), by October 29 th . [ 30 ] I also direct the mother to provide a copy of her 2020 tax return and notice of assessment to the father (with a copy to the Court – same way) by the same deadline. [ 31 ] On receipt of that information, I will decide whether any child support was payable starting February 2021 payable, if so by which party, whether any arrears presently exist, and set any required ongoing child support. [ 32 ] As noted, I will also decide whether any retroactive support (sparked by any inaccurate or under-disclosure) is payable.

D.

Spousal support [ 33 ] Assuming entitlement to spousal support, I am not able to gauge the father’s capacity to pay such support until completing the above-described income review on the child-support front. [ 34 ] On the question of entitlement, the mother made general arguments in favour of compensatory and non-compensatory support, but she did not provide any specific arguments or cases bearing on entitlement in circumstances here i.e. of a three-year relationship (July 2015 to August 2018), where (after a maternity leave) the mother returned to her pre-birth-of-child work (i.e. where both parents continued to pursue their pre-child employment ), where the mother provided no evidence of a pre-birth plan to go back to school or of any deferral of any such plan on account of the child’s arrival , of any particular change-of-arc-of-employment because of the child’s arrival , how her needs have changed, or may have changed, on re-partnering , or what particular career launch of the father she contributed to (where he remains significantly dependent on parental support to make ends meet). [ 35 ] I am prepared to receive any further submissions the mother may wish to make on any of these aspects (via letter, 3-page maximum, excluding cases) by October 29 th and any response submissions the father may wish to make, within 10 days of receiving the mother’s further submission (if any).

E. Closing note [ 36 ] I also direct joint decision-making, including respecting all medical, educational, and extracurricular activities of the child, and the standard “non-disparagement” provision. [ 37 ] If the parties require clarification of any aspect, they can seek directions via my assistant (Stacy Adams).

Heard on th e 23 rd day of September 2021. Dated at the City of Wetaskiwin, Alberta this 6 th day of October, 2021 . M. J. Lema J.C.Q.B.A. Appearances: Nduka Ahanonu Duke Law Office for the Applicant Anthony V F Morrish Axon Law for the Respondent