Heuft v Bramwell, 2021 ABQB 830

Court of Queen’s Bench of Alberta Citation: Heuft v Bramwell, 2021 ABQB 830 Date: 20211020 Docket: FL03 33527 Registry: Edmonton Between: Shirlene Jennifer Heuft Applicant - and - Kevin Donahue Bramwell Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ [ 1 ] This a follow-up to my decision reported at 2021 ABQB 642 , where I left open Ms. Heuft’s request for retroactive adjustments to child support pending possible further disclosure by Mr. Bramwell. [ 2 ] Here are the key parts of my earlier decision: Request for retroactive support

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) . 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) . … 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. … 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. [paras 74, 75, 77, and 79] [ 3 ] As far as I am aware, Mr.

Bramwell has not made any income or other disclosure in response to Graesser J.'s order in Family Docket Court. [ 4 ] The question then arises: is it in order for me to make any retroactive adjustments here (specifically, to grant Ms. Heuft's request to adjust child support back to 2018, in light of increased expenses of raising a late-stage teenager, versus an infant i.e. the child's stage when the $200 amount was set back in 2004 and also the effects of inflation), even though I have no information from Mr.

Bramwell about his income in 2018, 2019, 2020 or 2021? [ 5 ] The answer is no (at least for now), for these reasons: 1. Mr. Bramwell's non-disclosure. Without disclosure from him about his income in those years, I am not able to determine whether any income-increase-related change should be made to child support; 2. the express reasons for the requested increase i.e. "more expensive to raise teenagers" and inflation.

As far as I can tell, both aspects are implicitly addressed, and apparently factored out, in the Child Support Guidelines i.e. which fix child support based on the payor's income (i.e. without any regard for the child or children's age or ages at any given time) and which are periodically adjusted for the effects of inflation.

In other words, neither aspect is a sufficient ground, on its own, or even in combination, for child support to be adjusted; and 3. in any case, per the Supreme Court of Canada's decision in Colucci v Colucci , 2021 SCC 24 , the key to need-based retroactive adjustments to child support being (in part) notice by the support recipient of a need for increase support. Even assuming increased need here (and that is probably a safe assumption here), as far as I can tell, at least six years passed between when Ms.

Heuft last raised the issue of increased child support (2014 or 2015) and when she brought her application for such support (earlier this year). [ 6 ] Per the Supreme Court's analysis, while Ms. Heuft may well have put Mr. Bramwell on notice of a need for more support (based in part on a perceived higher income by him at that time) in 2014 or 2015, by not bringing her application until six or so years had passed, she effectively undercut the force of that notice. [ 7 ] When she applied this year (2021) for increased support, she was not able to point to having given Mr.

Bramwell any earlier and still “active” notice of a need for such support i.e. other than her six-years-earlier request. [ 8 ] Per the Supreme Court, the typical maximum "reach back" period is three years i.e. based on having given some kind of earlier (“effective”) notice of a need for increased support. [ 9 ] In other words, if Ms. Heuft had requested increased support (whether based on perceived higher income for Mr. Bramwell or increased child-care expenses, or both) in 2018, she would have been able to seek retroactive support, in 2021, back to that date.

Having staked a claim to increased support in 2018, she could have sought increased support back to that “effective notice.” [ 10 ] But with the 2014 or 2015 notice having effectively expired (i.e. after three years had passed i.e. by 2017 or 2018), and by not giving any further notice until bringing her application (in 2021), she effectively precluded herself from seeking any retroactive support i.e. at least based on increased need. [ 11 ] That leaves retroactive support based on potential increased income by Mr.

Bramwell. [ 12 ] As noted, with him having made no disclosure (at least yet) on that front, I cannot determine whether any such retroactive increase is possible here. [ 13 ] The difference with that kind of adjustment is that, if Mr. Bramwell actually earned increased income (from $23,000 i.e. the circa 2004 figure) in the years 2018-2021, and if Ms. Heuft had no reason to know of that increase or those increases, the law would permit Ms.

Heuft to reach back, possibly as far as 2018, or perhaps even further, because she would have had no reason to seek increased support i.e. being unaware of the income increases. [ 14 ] That is the potential risk taken by a support payor who fails to disclose income increases i.e. that the normal rules about retroactive support (discussed above) might be relaxed, with the support recipient able to reach back even without having provided earlier "effective notice" and potentially reaching back retroactively to periods before such notice. [ 15 ] All to say: it is too late now for Ms.

Heuft to apply for retroactive support based on increased needs. [ 16 ] It is not too late for her to seek such support if it is based on Mr. Bramwell having earned increased income in (for example) 2018-2021 and having failed to tell her about that increased income.

[ 17 ] The immediate problem, on the latter aspect, is (as noted) Mr. Bramwell's ongoing failure to disclose. [ 18 ] That failure means, currently, that I have no evidence on his income and thus no ability to impose (if justified) any retroactive increases in support. [ 19 ] But it does not mean that he is in the clear: a support payor cannot escape his or her lawful support obligations by ignoring disclosure obligations. [ 20 ] All to say: with Mr. Bramwell's ongoing failure to disclose, it falls to Ms.

Heuft to seek a further disclosure order and to attach consequences to any ongoing failure or, alternatively, to ask for consequences for his failure to comply with Graesser J.’s disclosure order. [ 21 ] If Ms. Heuft brings such an application, I will hear it i.e. I am seizing myself with future applications on this file. [ 22 ] One last thing: on Ms. Heuft's request for changes on the

section 7 front, I do order that, if he has a benefits package through his company or companies or through any employment, and if he has not already done so, he add the child her to his benefit plan so that any ongoing medical, dental or other expenses potentially covered by any such plan can be applied to both Ms. Heuft's benefit plan and his plan, if any. [ 23 ] As well, to the extent any medical, dental or other expenses exceed the coverage limits of either or both plans (as applicable), Mr. Bramwell and Ms. Heuft will share the overage amounts proportionate to their current incomes. (As noted, fixing Mr.

Bramwell's current income may depend on Ms. Heuft bringing an application for further disclosure or to enforce the existing disclosure order.) Heard on May 18, 2021. State of disclosure reviewed on October 18, 2021. Dated at the City of Edmonton, Alberta this 20 th day of October, 2021. M. J. Lema J.C.Q.B.A.