Spring v Spring, 2021 ABQB 86

Court of Queen’s Bench of Alberta Citation: Spring v Spring, 2021 ABQB 86 Date: 20210203 Docket: 4801 128827 Registry: Calgary Between: Jason Donald Spring Applicant - and - Danielle Vanessa Spring Respondent Corrected judgment: A corrigendum was issued on January 21, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] On July 24, 2020, Jason Donald Spring ("the Applicant") filed an application seeking the following relief:

a) an order varying the Divorce Judgment and reducing his on-going

section 3 child support to $0 per month retroactive to January 1, 2016, in accordance with the amount payable under the Federal Child Support Guidelines ("the Guidelines "), and continuing until further order of the Court;

b) an order directing that his share of

section 7 expenses be reduced to 0%, retroactive to January 1, 2016;

c) an order setting the Guideline Income of Danielle Vanessa Spring (“the Respondent”) at $87,774, based on her Line 150 income in her 2019 income tax return;

d) costs on a solicitor-client basis. [ 2 ] The Respondent asks that this application be dismissed. She also seeks an order imputing the Applicant’s income at $125,000; an order enforcing the Applicant’s child support arrears and costs on a solicitor client basis. [ 3 ] This application was heard on September 17, 2020. At the conclusion of oral argument, I reserved my decision and directed the Applicant to provide the court with copies of his income tax returns for the years 2007 to 2019. These are my reasons for decision.

Facts [ 4 ] The parties were married on November 29, 2002, and were divorced in 2008. There is one child of the marriage, “A”, born September 10, 2004, and currently living in Ontario with the Respondent. The Respondent and “A” relocated to Ontario in 2009. [ 5 ] The Divorce Judgment of Wilson J. dated April 18, 2008, required the Applicant to pay monthly child support of $1,098 effective August 1, 2007, based on a Guideline Income of $125,000. The order also provided that the Applicant would be responsible for 73% of the

section 7 extraordinary expenses. The terms of the Divorce Judgment included the standard term requiring the annual exchange of financial information by the parties, as well as a term that required the parties to conduct a child support review on or before June 30 th each year for the purposes of adjusting child support retroactively and prospectively in accordance with the Guidelines .

Finally, the Divorce Judgement required the Applicant to pay spousal support of $1,200 per month from August 1, 2007, until December 31, 2007. [ 6 ] The terms of the Divorce Judgment contemplated the Respondent’s planned move to Ontario, in July 2007, the parties having previously agreed that the Respondent could relocate to Ontario with “A”. Based on various emails between the parties in 2007, appended to the Respondent’s affidavit of August 6, 2020, it seems clear that the Applicant was not prepared at that time to pay Ontario child support Guideline amounts; refused to pay

section 7 expenses if the Respondent relocated to Ontario; and sought the Respondent’s contribution to his access costs to travel to Ontario. While the Divorce Judgment was silent on the issue of travel costs, it provided that the Applicant would have reasonable and generous access to “A” and, specifically, access every other Thanksgiving, Christmas, New Year’s Day, one month each summer, alternating between the months of July and August, “A’s” birthday every other year, and one additional week each year as agreed upon by the parties. Regular telephone access was also to be given to the Applicant in accordance with a

schedule he was to provide in advance and in writing. At the time of the Divorce Judgment, the Applicant had not made full financial disclosure. [ 7 ] In the initial years following the Respondent’s relocation to Ontario, it is clear that the Applicant expected the Respondent to share in the travel costs notwithstanding the fact that he had unilaterally reduced the amount of child support by 36%, as more fully described below. [ 8 ] The Applicant exercised very little access to “A” after the move to Ontario, though arranged to see him periodically if he was in Toronto for work purposes.

He did not exercise his court-ordered parenting time even when the Respondent offered to pay the travel costs. The Applicant has not seen “A” since 2011, and has not spoken to him since 2015. In questioning, the Applicant conceded that he has not even requested his telephone number. In his affidavit sworn on August 14, 2020, the Applicant nonetheless deposes that he has continued a relationship with Alexander through telephone calls every other week. [ 9 ] In 2008, subsequent to the Divorce Judgment, the Applicant unilaterally reduced his monthly child support to $700 per month.

The materials indicate at various places that support was reduced to $800 per month, but the Applicant’s email to the Respondent dated October 12, 2008, Exhibit C to the Respondent’s August 6, 2020 affidavit, clearly confirms that he had sent her a series of post- dated cheques for $700 per month. The Applicant suggests that he believed this reduced amount was acceptable to the Respondent by virtue of the fact that she accepted this reduced amount.

However, it is clear from their email communication that as early as October 2008, the Respondent was asking when the accumulating arrears would be paid and continuing to seek full financial disclosure.

In one of his emails in October 2008, the Applicant described the full table amount of child support ordered in the Divorce Judgment as a “cash grab” and suggested that he could provide day to day care for Alexander at a “fraction” of the stipulated amount. [ 10 ] The Respondent registered the Divorce Judgment in Ontario in 2013, though it took until sometime in 2014 for the Family Responsibility Office (“FRO”), the Ontario equivalent of the Alberta Maintenance Enforcement Program (“MEP”), to enforce the support provisions of the Alberta order.

There are, accordingly, no records from FRO regarding the payment history prior to January 1, 2014. However, as of that date, the FRO records indicate that the Applicant was in arrears in the amount of $19,892. [ 11 ] The Applicant remarried in 2011 and has two other children. The eldest child was born on October 15, 2015, and is currently aged 5 years. He is now in kindergarten for several hours each day. The younger child was born on March 22, 2017, and is currently aged 3.5 years. The Applicant is a stay-at-home father as his new spouse works full-time in support of the family.

In June 2015, the Applicant lost his job as an IT sales person in the oil and gas sector. Thereafter, he deposes that he sought other employment in his field, but was unsuccessful. He received a severance payment of $50,000 in conjunction with his loss of employment. As set out in his July 24, 2020 affidavit, he made the decision to be a stay-at-home father for two young children in 2017.

However, during questioning on August 27, 2020, he confirmed that he made the decision to be a stay at home father in 2016, and that he made no efforts to find work in 2017, 2018, 2019, or 2020. [ 12 ] In his affidavit sworn July 24, 2020, the Applicant deposes that he made support payments from August 2007, but is not longer able to do so on account of the fact that he is currently unemployed and has no other source of income. [ 13 ] On March 17, 2017, the Applicant applied to vary his

section 3 child support as set out in the Divorce Judgment to $0 per month retroactive to January 1, 2016. On November 2, 2017, McCarthy J. granted a provisional order to this effect, pending outcome of the confirmation hearing in Ontario. On the same date, McCarthy J. also extended a stay of enforcement on the payment of child support arrears originally granted by Erb J. on March 29, 2017, and initially extended to November 2, 2017, by Jerke J. on September 27, 2017.

McCarthy J. directed that the stay was to continue for an indefinite period pending the outcome of the confirmation hearing in Ontario relative to his provisional order of the same date. One of the conditions of the stay of enforcement was that the Applicant would pay $25 per month. [ 14 ] Following a hearing held on October 23, 2018, the Ontario Superior Court of Justice declined to confirm the provisional order: Spring v Spring , 2019 ONSC 367 .

In its January 14, 2019 decision, the Ontario court expressed concerns regarding the Applicant’s failure to provide full financial disclosure, as well as his failure to provide any evidence regarding the circumstances of his unemployment, or his attempts to find employment. In her reasons, Kristjanson J. found that the Applicant was voluntarily unemployed.

She also found that the Applicant failed to provide any explanation for his failure to disclose the severance package he received when he lost his employment in 2015, as well as a 2014 disposition of shares and mutual funds in the amount of $2,068,449, and total proceeds of real estate of $476,554. [ 15 ] The Court also found that the Applicant failed to pay down child support arrears while he was employed and earning a significant income, and that he had never contributed to

section 7 expenses, his share of which were estimated to be over $8,700. Further, she found that he purchased a home with his second wife valued at $978,000 at the time of purchase, while failing to pay down his child support arrears. Taking all of this into account, Kristjanson J. dismissed the Applicant’s claim for a retroactive reduction of child support to January 1, 2016. She held that the Applicant was intentionally under-employed or unemployed as per section 19(1)(

a) of the Guidelines , and that he had failed to demonstrate a material change in circumstances. Further, she declined to remit the matter back to Alberta for further evidence as per section 19(8) of the Divorce Act . Finally, the Court ordered costs of $6,800 against the Applicant payable within 30 days, and required the Applicant to provide his tax returns for 2014 to 2017. [ 16 ] On June 25, 2019, the parties agreed to vary the parenting provisions of the Divorce Judgment.

A consent order to this effect was filed in the Ontario Superior Court of Justice. [ 17 ] On July 25, 2019, the Respondent filed an application in Ontario seeking sole custody of Alexander. In her August 6, 2020, affidavit, the Respondent deposes that she was seeking sole decision-making over travel arrangements, including passports, given that “A” had missed out on travel opportunities in the past due to the Applicant not responding to requests for approval in a timely fashion. She also sought to have university expenses added as a

section 7 expense. This application was served on the Applicant on August 9, 2019. On August 19, 2019, he filed a Notice to Disclose application in Ontario, followed by an application to vary

section 3 child support on September 9, 2019. On August 28, 2019, the Applicant filed an affidavit in Ontario stating that he had already initiated an application in Alberta to vary

section 3 and

section 7 support. [ 18 ] On September 9, 2019, the Applicant brought a further application in Alberta seeking a stay of enforcement. This application was heard on November 12, 2019, during which the Applicant raised for the first time the contention that he had not been served with notice of the date of the confirmation hearing in Ontario. The application for a stay of enforcement was denied with costs to the Respondent.

During the course of the proceedings, Dilts J. noted that the Applicant and his counsel had “grossly misrepresent[ed]” the current status of the matter in advising the court that child support of $1098 per month was being paid when that was not actually the case. [ 19 ] On November 25, 2019, the Applicant filed a further application in Alberta for a stay of enforcement of his child support arrears and on-going child support obligations. The application was returnable on December 19, 2019.

The following day, November 26, 2019, he filed a further application to vary child support and to set arrears at $0 based on a Guideline Income of $0. This application was also returnable on December 19, 2019.

However, on December 4, 2019, the Respondent was notified that both matters had been unilaterally set down by the Applicant for a Special Chambers application on February 26, 2020. [ 20 ] On December 11, 2019, The Respondent’s counsel brought an application to set aside the special chambers hearing scheduled for February 26, 2020; an order dismissing the Applicant’s November 12 th application to reduce his child support to $0; an order declaring him to be a vexatious litigant, pursuant to the Apparent Vexatious Litigant Process in Civil Practice Note 7; and an order preventing the Applicant from bring any further applications.

On December 18, 2019, Rooke ACJ directed that both the Applicant’s and the Respondent’s applications be adjourned sine die pending the outcome of the vexatious litigant application. [ 21 ] On April 7, 2020, Rooke ACJ found that service on the Applicant of notice of the confirmation hearing in Ontario was not in order, and granted the Applicant leave to proceed with his application.

Rooke ACJ also stayed ongoing child support obligations from January 1, 2016, onward pending the results of the new hearing. [ 22 ] Following two further court appearances on May 20, 2020 and July 2, 2020, the application for variation was set down for Special Chambers on September 17, 2020. [ 23 ] According to the Applicant, his 2020 income is expected to be “negligible”. He deposes that he is a full-time caregiver for his two children and that his family is supported by the income of his current spouse. Issues [ 24 ] The following issues arise for consideration in this matter:

a) Has the Applicant demonstrated a material change in circumstances since the granting of the Divorce Judgment:

b) Should the Applicant’s Guideline Income be set at zero from 2016 onward on the basis that he falls within one of the exceptions set out in s 19(1)(

a) of the Guidelines ;

c) Should income be imputed to the Applicant. The Law [ 25 ] Section 17(4) of the Divorce Act , provides as follows: Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change in circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation made in respect of that order.

[ 26 ] The conditions which constitute a change of circumstances for the purposes of section 17(4) of the Divorce Act , are set out in

section 14 of the Guidelines : For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

a) In the case where the amount of child support includes a determination made in accordance with the applicable table, any change of circumstances that would result in a different child support order or any provision thereof; [ 27 ]

Section 3 of the Guidelines sets out the presumptive rule relating to the calculation of child support. It provides as follows: Unless otherwise provided under these Guidelines , the amount of child support for children under the age of majority is

a) The amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought… [ 28 ] Section 19(1)(

a) of the Guidelines provides: The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

f) the spouse has failed to provide income information when under a legal obligation to do so.

Analysis Has the Applicant Demonstrated a Material Change in Circumstances Since the Granting of the Divorce Judgment? [ 29 ] The Applicant maintains that his loss of employment in June 2015, and his subsequent inability to find employment, amounts to a material change in circumstance permitting him to ask the court to re-open the support provisions contained in the Divorce Judgment. [ 30 ] The Applicant says that there has been no recalculation of his support obligations since the date of the Divorce Judgment notwithstanding that fact that there has been a “drastic” change in his circumstances.

He contends that his income has been “negligible” since his layoff in 2015 due to a downturn in the oil and gas industry, and that he remains unemployed. He asks the court to reduce his child support obligations to reflect his actual income from 2016 onward, and to adjust his proportionate share of

section 7 expenses accordingly. [ 31 ] The Respondent does not dispute the fact that the Applicant’s loss of employment in June 2015, amounts to a material change in circumstance so as to warrant a reconsideration of the child support ordered in the Divorce Judgment. I agree. Should the Applicant’s Guideline Income be Set at Zero from 2016 Onward on the Basis that He Falls Within One of the Exceptions Set Out in s 19(1)(

a) of the Guidelines? [ 32 ] The Applicant maintains that no income should be imputed to him as his current unemployed state “is required by the needs of a child of the marriage”, namely his two young children with his second wife. He relies on the decisions of the Court of Appeal in Hunt v Smolis-Hunt , 2001, ABCA 229 . As such, he says that s. 19(1)(

a) of the Guidelines allows intentional unemployment when it “is required by the needs of a child of the marriage or any child under the age of majority”. In short, he contends that his decision to become a full-time care-giver to his children, and be unemployed as a consequence, is permitted by the Guidelines . He also relies on the decision in Demers v Moar , 2004, ABCA 380 , urging the court to find that the mother’s circumstances in that case are very similar to his own circumstances in this instance. [ 33 ] Before turning to consider the Applicant’s reliance on s. 19(1)(

a) of the Guidelines in support of his application to vary child support to zero, I would briefly refer to the fact that the Applicant initially relied on his loss of employment and inability to find suitable similar employment as the basis for this application. [ 34 ] The Respondent points out that the Applicant raised for the first time in his affidavits of July and August 2020, that he had made the decision to be a stay-at-home parent.

Prior to that, specifically in his affidavits of September 9, 2019, November 12, 2019, November 25, 2019, and April 28, 2020, respectively, the Applicant repeatedly stated that he had been unable to find work subsequent to his layoff as a result of a downturn in the oil market. In conjunction with his March 2017, application, and his initial affidavits, the Applicant did not disclose his remarriage or the fact that he had a young child.

Rather, he maintained that he was living off his RRSP’s while searching for work. [ 35 ] The Applicant’s evidence regarding the actual efforts he made to obtain employment after his lay off in June 2015 is very

limited. Indeed, he failed to produce any evidence regarding any specific efforts he made to seek alternative employment. During questioning on affidavits held on August 27, 2020, he explained the absence of any records on the basis that his interactions with prospective employers had been conducted via email and that he subsequently deleted the email address used for this purpose. He conceded during questioning that there was no evidence to support his contention that he also searched for employment opportunities outside of Alberta.

He gave a series of undertakings to use his best efforts to provide confirmation of recruiters that he had dealings with regarding possible employment opportunities, as well as companies that he approached for work in the United States. [ 36 ] I find that the Applicant’s affidavit references to his search for employment up until early 2016, are all quite vague and non- specific. I also that the Applicant makes no mention of any efforts made to find employment outside of his specific field.

As set out above, the Applicant acknowledged during questioning that he made the decision to become a stay-at-home parent in 2016 and did not look for work during the period 2017-2020. During questioning, the Applicant also stated that he could not afford to stay at home indefinitely, but otherwise gave no indication of any plan to return to work. [ 37 ] In her 2019 reasons declining to confirm the provisional order of McCarthy J, Kristjanson J found that the Applicant had failed to provide evidence regarding the circumstances of his unemployment or his subsequent attempts to find new employment.

While these findings were made following a confirmation hearing in which the Applicant did not participate, due to what Rooke ACJ described as irregularities in service of notice of the hearing, I am satisfied that these findings are nonetheless valid.

The Applicant’s affidavits of September 6, 2019, May 15, July 24, and August 14, 2020, all filed subsequent to the release of the Ontario decision, fail to respond to, or otherwise address, the court’s findings in this regard beyond the mere assertion that he lost his job in June 2015, and was thereafter unable to find work in his field. [ 38 ] While he deposes in several of his affidavits that he attempted to establish his own business, he provides no documents or other evidence to substantiate this claim.

The Respondent maintains that this absence of evidence reflects the fact that he never intended to look for work and wanted to be a stay-at-home parent from the outset. In my view, the Respondent’s suspicions in this regard are not without merit. Again, during questioning, the Applicant conceded that he stopped looking for work by the end of 2015, a mere six months after losing his employment. His first child was born in October 2015. [ 39 ] In questioning, the Applicant also acknowledged that his wife pays for all of his expenses, including his child support payments.

His child support payments were previously paid out of a joint account that the Applicant held with his wife, but he removed his name from this account in early to mid-2019, prior to filing his 2019 application to reduce his child support to zero. [ 40 ] In his November 25, 2019 application to this court, the Applicant cited for the first time his reliance on s. 19(1)(

a) of the Guidelines as the basis for seeking to reduce his child support to zero. In support of his argument, the Applicant refers to a passage in the majority decision in Smolis-Hunt in which the Court held: Section 19(1)(

a) specifically permits deliberate unemployment or under-employment when required by the child’s needs or the reasonable education or health needs of the obligor. In keeping with ss. 19(1)(

b) to (i), a court should only treat deliberate unemployment or under-employment as a basis for interference where the obligor is avoiding support obligations. Section 19(1)(

a) gives latitude to a spouse to choose not to work or work less than full time. There are a number of examples where a court has permitted under-employment to accommodate the needs of a child and/or the spouses health or education needs. “Needs” have not been held to require compulsion or necessity: at para 49-50. [ 41 ] In Smolis-Hunt , the trial judge found that the husband was intentionally under-employed within the meaning of s. 19(1)(

a) of the Guidelines , and imputed income to him of $55,000. Johnstone J. then went on to order retroactive and ongoing lump sum child support in the amount of $129,376. She also found that the wife had demonstrated an entitlement to compensatory spousal support.

In view of the husband’s lack of assets, and limited prospects for future income, the trial judge, Johnstone J, transferred all of the husband’s interest in the matrimonial property to the wife in lieu of the lump sum child support. [ 42 ] On appeal, a majority of the Court of Appeal held that proof of a course of conduct on the part of the payor to defeat his or her child support obligations was required as a prerequisite for imputing income.

The Court stated, at para 42: [Section 19(1)(a)] should be interpreted to impute income where the obligor has pursued a deliberate course of conduct for the purpose of evading child support obligations. We read the

section as requiring either proof of a specific intention to undermine or avoid support obligations, or in circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her support obligations. [ 43 ] The facts in Hunt -Smolis were very different from those in the case now before the court in that Hunt-Smolis involved a case of alleged under-employment.

In that instance, the husband was a lawyer who Picard JA, dissenting, described as “stubbornly adhering to a career path that did not permit him to earn enough money to adequately support his children when he had the capacity to earn more.” Referring to the trial judge’s findings of fact, Picard JA continued: “[S]he found that he chose to continue in a legal practice where he was unsuccessful and where he had no reasonable prospect of future improvement”: at para 49. [ 44 ] The law is clear that parents have a duty and an obligation to support their children that continues notwithstanding that they may take on additional duties and obligations for other children born as a result of subsequent relationships.

In this instance, I take this to mean that the Applicant’s moral and financial obligations to his son “A” are in no way diminished by the fact that he now has other children: Shukalin v Shukalina , 2012 ABCA 274 ; Fisher v Fisher , 2008 ONCA 11 . [ 45 ] The decision in Hunt -Smolis was subsequently considered and applied by the Court of Appeal in Demers , a case in which the trial judge imputed an income of $18,000 to a mother who was unemployed, at home caring for an 18-month old baby, and expecting another child at the time the order was made.

The income was imputed for the purposes of ordering the mother to pay child support for a 9-year old child then in the care of that child’s father. The mother had been employed up to the point when she went on maternity leave for a period of approximately one year during which time she received employment insurance maternity leave benefits. In allowing the mother’s appeal, the Court of Appeal found that no income should be imputed to the mother and, as such, determined that no child

support was payable. [46] The Court held that the mother fell within the exemption created by s. 19(1)(

a) of the Guidelines, namely that she wasunemployed due to her decision to provide care to her two young children. However, the Court also found that “mothers cannot avoidtheir financial responsibilities indefinitely because they choose to have more children in subsequent relationships”: at para 24. It issignificant, in my view, that the Court of Appeal characterized the situation as a case involving “circumstances of recent maternity”,noting that children between the ages of two and four months “need constant care and that they cannot be left alone while their parentspursue employment”: at para 19.

The Court also noted that federal and provincial legislative provisions creating maternity leave fromemployment acknowledge “the emotional and physical health needs of both mother and child during the periods surrounding childbirth”:at para 19. Further, the Court observed that the cited cases where the ability to earn income was imputed to the mothers of youngchildren did not start until the expiry of the period of maternity leave. [47] Citing the decision of the British Columbia Court of Appeal in Van Gool v Van Gool, (BC CA), [1999] 7WWR 443, the Court in Demers qualified a parent’s reliance on s 19(1)(

a) even in the case of young children. As such, the Court notesthat “[T]his is not to suggest that the exemption will be extended simply because the child under care is not yet of school age, or stillrequires after-school care or is not yet of the age of majority”: at para 23. [48] In Van Gool, the mother stayed home because she wanted to be available for her 13-year old son.

The British Columbia Courtof Appeal found that the mother had intentionally decided to remain under-employed to avoid or minimize her child support obligations.Based on a projected 30-hour work week, the Court imputed to her a total income of $19,000 per year. The Court reasoned at paras 33and 34: 33 In this case, Ms. Dryden offered no persuasive reason for refusing to seek additional employment. In essence, she said that she wantedto be “available” for Eric at the beginning and the end of the day, and for Mataya and Ryley during periods of access.

But Eric was 13years old at the time of the hearing, and there is no suggestion that he had special needs for care, transportation or otherwise which wouldrequire her to be available to him so as to preclude her from obtaining full-time or increased part-time employment. Further, her desire tobe home during access visits does not justify her almost complete failure to take steps to find increased employment during the week, oron weekends when she did not have access. Nor is this a case in which the reasonable educational or health needs of Ms.

Dryden justifiedher state of under-employment so as to bring her within the qualifying words contained in s. 19(1)(

a) of the Guidelines. 34 While it is true that Ms. Dryden has limited work experience and job skills, this does not explain her failure to pursue employmentwhich does not require significant skills, or employment in which she could learn the necessary skills on the job. While these woulddoubtless be jobs at the low end of the wage scale, this Court has never sanctioned the refusal of a parent to take reasonable steps tosupport his or her children simply because they could not obtain interesting or highly-paid work.

Rather, this Court has made it clear thata person is expected to take reasonable steps to obtain employment commensurate with such factors as their age, state of health,education, skills and work history. [49] I would also refer to the decision of the British Columbia Court of Appeal in McCaffrey v Paleolog, 2011 BCCA 378. In thatcase, McCaffrey was a mother who had been ordered to make child support payments in relation to children from a previous relationship.The mother remarried and elected not to work in order to remain at home to care for two children from her new relationship.

At the timeof the application, the two children were aged three years and eight months, respectively. The elder of the two children was enrolled infull-time daycare, while the younger child was on a wait list of approximately one year to also be accepted in full-time daycare. Thechambers judge accepted the mother’s application for the suspension of child support, granting her a 15-month hiatus from her childsupport obligations to her first family.

The mother’s former spouse appealed. [50] In allowing the appeal, the Court held that evidence was required to establish that the needs of a child required the parent tostay at home in order for section 19(1)(

a) of the Guidelines to apply. The Court stated at paras 49 and 58: 49 This Court has concluded that a desire simply to stay home with children is not sufficient to invoke the exception in s 19(1)(a).

Theremust be evidence of needs of a child which require the parent to remain home and unavailable for employment. […] 58 ...it is recognized that generally a newborn child or a child of very young age is a child who needs care at home in the context of s.19(1)(a), but childbirth does not provide an automatic relief from a parent's child support obligations; … [51] The Court in McCaffrey observed that there was no evidence led as to why daycare could not have been arranged for theyounger child once the mother became aware that she was pregnant.

As such, the Court expressed the view that the mother should haveknown to commence a search for suitable daycare well in advance of the birth of her third child given her experience with her secondchild. [52] McCaffrey has been cited with approval in numerous decisions, primarily in British Columbia. It was recently followed by theSupreme Court of British Columbia in OO v LM, 2020 BCSC 851. [53] In OO, the Respondent alleged that he fell under the section 19(1)(

a) exemption, as he and his new partner had two youngchildren who, he contended, required him to remain at home. The children were three years and nine months, respectively, at the time ofthe application. The Court rejected the father’s claim that he needed to remain home and unemployed until the youngest child was 18months of age.

The Court concluded that the Respondent’s base salary of $86,110 per year should be proportionately imputed as hisincome for support purposes. [54] The Court’s reasoning at paras 84-86 is particularly pertinent: 84 I agree that the increase in parental leave to a maximum 18-month period reflects a social recognition of the value of staying at homewith a new child. However, as when the maximum 12-month period applied, the desire to stay home for the entire period permitted is

insufficient to engage s. 19(1)(

a) of the Guidelines . The McCaffrey approach still applies, it simply applies to longer period of leave eligibility. 85 KI was nine months old when A returned to work at the Parole Board. The respondent had already taken three months' leave following KI's birth. During that three-month period, he and A were both at home with KI. Thus, although KI was 9 months’ old when the respondent began his 2020 parental leave, 12 months of parental leave had already been taken. Further, the 12 months leave taken in 2019 had been taken with a salary top-up from the federal government.

It is because 12 months with salary top-up had already been taken, that the additional 2020 leave would be covered by only the Employment Insurance benefit. In other words, had the respondent not taken overlapping leave with A in 2019, he would have had three months leave with salary top-up available to him in 2020. 86 There is no evidence that KI needed to be older than nine months to attend daycare. To the contrary, there is evidence from the respondent about the cost of all of the children, including KI, being provided childcare. There is also no evidence that KI has any special care or development needs.

In short, there is no evidence that the respondent need take leave in 2020, let alone take leave until KI is 18 months’ old. [ 55 ] The Applicant urges an

interpretation of s. 19(1)(

a) of the Guidelines that would create an unqualified right for a parent to make the decision to remain at home in the care of children even in the face of a moral and legal responsibility to provide financial support to other dependent children.

To the extent that he relies on the Court of Appeal’s decisions in Smolis-Hunt and Demers , I am of the view that this is based on a mis-interpretation of what these two cases actually decided. [ 56 ] First, I am of the view that para 50 in the majority decision in Smolis-Hunt , the para referenced by the Applicant, is obiter as not being essential to the ultimate decision rendered by the Court. As previously discussed, Hunt -Smolis was a situation that involved the alleged under-employment of a father in circumstances that did not require an

interpretation or application of the exemption set out in the provision of the Guidelines allowing for the imputation of income. Second, even assuming that this portion of the decision is not obiter, I do not accept the contention that Smolis-Hunt stands for the proposition that s. 19(1)(

a) of the Guidelines permits a parent, absent special circumstances, to elect to be unemployed or under-employed for an indefinite period of time. The majority in Smolis-Hunt simply observed that other cases that have considered the provision did not import a requirement for compulsion or necessity into the definition of “needs” in s. 19(1)(a). [ 57 ] The scope and reach of this statutory exemption found in s. 19(1)(

a) was not explored in any depth in Smolis-Hunt given the circumstances present in that instance. It was, however, examined in Demers , a subsequent decision of the Alberta Court of Appeal, as well as a number of other cases referenced above. The decision in Demers stands, in my view, for the proposition that a parent’s reliance on s. 19(1)(

a) of the Guidelines to justify a period of unemployment to meet the needs of a child is not unqualified or unlimited. This is underscored by the Court’s discussion at para 21: The circumstances of recent maternity is not, of course, the only circumstances under which a parent may show that her unemployment is required by the needs of a child. Should the father in this case renew his application at some point in the future, the mother might well be required to lead evidence relating to, for example:

a) The physical and mental health needs of her particular children or, one of them, if those result in a need to remain at home with the child;

b) The availability of adequate daycare or babysitting services;

c) The cost-effectiveness of placing her two younger children in daycare or with a babysitter given the income she is likely to earn upon returning to work (there may well be a presumption that the needs of a child favour the provision of childcare by a parent where the potential income which could be earned through employment by that parent does not significantly exceed the cost of daycare, babysitting and after-school care); and

d) The ages of the children in relation to the times when they would be expected to be enrolled in school and when they would be expected to no longer need after-school care. [ 58 ] I am not satisfied that the Applicant has discharged the onus resting upon him to establish that he falls within the scope of the exception set out in s. 19(1)(

a) of the Guidelines . I find that the he has led no evidence of any special needs or circumstances that would support a need for him to remain at home to care for his two younger children, the oldest of whom is now in school for several hours a day, and the youngest is approaching 4 years of age. [ 59 ] Cases such as Demers , McCaffrey , and OO suggest that recent maternity may excuse employment of a parent bearing actual physical care obligations for another child or children, but that such an excuse may well be time-limited to the applicable period of government-recognized maternity leave.

To the extent that maternity leave recognizes the emotional and physical health needs of the mother following childbirth, this would be a relevant consideration when determining an appropriate period of parental leave for a father in these sorts of circumstances.

In this instance, the Applicant acknowledged that his current wife took 8 or 9 months of maternity leave following the birth of each of their children. [ 60 ] In the absence of any evidence from the Applicant to demonstrate any special needs or circumstances applicable in this instance, I find that he has failed to establish that he is entitled to rely on the exception set out in s. 19(1)(

a) of the Guidelines . Should the Court Impute Income to the Applicant? [ 61 ] As previously indicated, the leading case in Alberta on the imputation of income as per section 19(1)(

a) of the Guidelines , is Smolis-Hunt, a decision of the Court of Appeal. [ 62 ] In rejecting a “reasonableness” test proposed in the dissenting reasons of Picard JA, the majority, Berger and Wittmann JJA,

noted “at least two irreconcilable lines of authority interpreting the necessary circumstances imposed by the word ‘intentionally’ in s.19(1)(a)”: at para 39. The majority decision sets out a number of important principles that assist in the proper application of s. 19(1)(

a) ofthe Guidelines. 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). [63] 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. [64] 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. [65] 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. [66] 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, 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: Hunt at paragraph 47. “While mala fides is not specifically required, all the circumstances described in s.19(1)(a)-(

i) permit the court to rectify a situation where the obligor is subverting or taking advantage of the general provisions in theGuidelines to the detriment of the child”: paragraph 48. Without more, unreasonable unemployment or under-employment is insufficientto impute income: para 71. An intent to evade support obligations may be found if “the unemployment, under-employment or other actsof the obligor indicate a deliberate refusal to live up to the obligation to support one’s children”: para 73.

Moreover, if it is apparent fromthe evidence that the payor lives comfortably yet declares minimal income, income may be imputed: Fleury v Fleury, 2009 ABCA 43 atpara 41, 448 AR 92. [67] In Keating, the Court of Appeal acknowledged that “[A]ppellate courts in other provinces (British Columbia, Manitoba,Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Québec 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.” [68] 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. [69] I would also refer to the decision of Coutu J in Bartel v Evans, 2002 CarswellAlta 974 (ABQB). In that instance, the courtfound 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 intentionaldecision to attempt to transfer his support obligations to the children’s mother. [70] The Applicant contends that Smolis-Hunt stands for the proposition that even unreasonable unemployment or under-employment provides an insufficient basis upon which to impute income in the absence of evidence of an intention to avoid or underminechild support obligations.

In this regard, he relies on a recent decision of the Court of Appeal in Sochowski v Sochowski, 2020 ABCA 59,in which the Court stated (at para 15) that “the proper test is whether the appellant was deliberately under-employed in order to avoidpaying child support, not whether he was using appropriate job-hunting techniques.” [71] The Applicant also says that no income should be imputed to him during the period during which he unsuccessfully soughtemployment.

Again, relying on the majority decision in Smolis-Hunt, the Applicant says that there is no evidence that he deliberatelypursued a course of conduct for the purpose of evading his child support obligations. [72] For the reasons that follow, and taking into consideration all of the surrounding circumstances, I am satisfied that theApplicant’s conduct relative to his child support obligations to his eldest son, “A”, demonstrate a deliberate refusal to live up to hisobligation to support this child. [73] First, the Applicant acknowledges that he did not comply with the Divorce Judgment in that he did not commence payingchild support until August 2008, notwithstanding the fact that the order directed him to commence monthly payments of $1098 onAugust 1, 2007.

When he did begin to pay child support, he paid less than the amount specified in the order and in an amount that he

determined unilaterally. [ 74 ] Second, despite the Respondent’s on-going requests for income information and payment of the accumulating arrears, the Applicant continued to pay a reduced amount until the Respondent sought the assistance of MEP. According to the Respondent, she contacted the Applicant on numerous occasions, asking him when he planned to catch up on his outstanding support payments as well as provide his annual income tax returns. Until the Respondent registered the Divorce Judgement with MEP in 2013, the Applicant determined the level and frequency of support payments.

In questioning, he agreed that he provided payments to the Respondent when it was convenient for him to do so. [ 75 ] In his affidavit sworn August 14, 2020, the Applicant states: In response to paragraph 9 of the Respondent’s Affidavit, I paid $800 per month from 2008 onward and had assumed that the Respondent agreed to accepting this amount as I did not hear from her on this issue until the Maintenance Enforcement Program (“MEP”) contacted me on her behalf in 2013. I then made monthly payment through MEP to pay down the arrears.

Based on my annual guideline income since 2016, I have overpaid my support obligations at this point. A recent statement from MEP showing this calculation is attached to this Affidavit and marked as Exhibit “C”. [ 76 ] During questioning held on August 27, 2020, the Applicant was confronted with various emails sent to him by the Respondent in the years immediately following their separation and divorce. All of these emails point to a lack of acceptance by the Respondent to a reduced amount and to a consistent request to bring his support payments into line with his support obligations.

In the face of this evidence, I cannot accept the Applicant’s suggestion that he assumed that the Respondent ever agreed to accept a lesser amount of child support than had been specified in the Divorce Judgment.

While he may well have hoped that she would accept the lesser amount that he was paying, he could not have reasonably concluded in the circumstances that this was in fact the case. [ 77 ] Third, I note the Applicant’s disregard for the express terms of the Divorce Judgment that required him to disclose his income on an annual basis so as to allow for an annual adjustment of the required level of financial support.

Indeed, as previously indicated, he also refused to provide complete financial disclosure prior to the granting of the Divorce Judgment. [ 78 ] On the evidence before me, it is clear that the Applicant failed to comply with this disclosure obligation from the outset, neglecting to provide this financial disclosure to the Respondent in 2008, the first year it was due, and continuing until 2015. Disclosure was only forthcoming when the Respondent took his initial steps to reduce his monthly child support obligation to zero.

Likewise, it is clear that no annual adjustment of child support took place, as clearly directed by the terms of the order.

The Applicant somewhat reluctantly conceded during questioning, that he was aware that the amount of child support for which he was responsible based on his Guideline Income could have been higher than the amount stipulated in the Divorce Judgment. [ 79 ] Fourth, I am satisfied that the Applicant underpaid child support during the slightly more than 8-year period following the date of the divorce as a result of his failure to provide timely disclosure and to ensure that the annual adjustment of child support took place.

In light of the Applicant’s contention that there are no current child support arrears prior to 2016, it is appropriate to at least consider whether the Applicant fulfilled his actual child support obligations up until that point in time. I note that there is no application before the court from either party seeking a recalculation of the amount of child support the Application ought to have paid up until December 31, 2015. I would also note that the parties did not provide extensive or detailed argument on this point.

However, in accordance with the court’s direction on September 17, 2020, the Applicant provided copies of his income tax returns and Notices of Assessment for the years 2008 to 2019. I have carefully reviewed this material, specifically the tax information pertaining to the years 2008-2015. Based on my review, it seems clear that the Applicant underpaid child support during this period of time. [ 80 ] The Applicant’s base child support was stated in the 2007 Divorce Judgment to be based on a Guideline Income of $125,000.

His Guideline Income in 2008, 2009, and 2010, appears to be approximately the same as in 2007, possibly slightly less or slightly more. In 2008, his Line 150 income was $116,252, though this amount included net rental income of -$25,411 and gross rental income of $16,800, as well as RRSP income that year of $1,333. In 2009, his Line 150 income is listed as $104,610, though this amount included net rental income of -$12,244, gross rental income of $12,000, and unspecified other income of $8,846.

In 2010, his Line 150 income is listed as $123,400, though both the tax return and Notice of Assessment state that he had employment income of $120,279, commissions of $23,448, and gross rental income of $23,800. Income from employment insurance of $1,788, and RRSP income of $1,481 is also reflected in the Applicant’s 2010 tax materials. Without more detailed information, and in the absence of submissions from the parties, it is not possible to precisely determine whether his Line 150 income for these three years would have also represented his Guideline Income for this same period of time.

However, as previously indicated, it does appear that his income during these three years was more or less the same as in 2007. [ 81 ] However, in 2011, 2012, 2013, 2014 and 2015, it appears that the Applicant’s Guideline Income exceeded the amount stipulated in the Divorce Judgment, in some years exceeding this amount to a considerable extent. In 2011, his Notice of Assessment recorded Line 150 income as $232,334, consisting of employment income of $231,910, commissions of $87,633, gross rental income of $58,800, and net rental income of $424.

In 2012, the Applicant’s Line 150 income is set out in his Notice of Assessment at $186,793, consisting of employment income of $187,788, commissions of $40,025, gross rental income of $100,300 and net rental income of - $995. Further, in his 2013 Notice of Re-Assessment, Line 150 income is shown at $268,236, consisting of employment income of $152,798, commissions of $6,391, gross rental income of $113,900, net rental income of -$3,800, RRSP income of $68,933, and other, unspecified income of $50,305.

In his 2014 Notice of Re-Assessment, Line 150 income is shown as $172,639, consisting of employment income of $148,964, commissions of $11,024, gross rental income of $37,416, net rental income of -$2,015 and RRSP income of $11,582.

Finally, in 2015, the Applicant’s Line 150 income is recorded as $127,235, consisting of employment income of $96,485, commissions of $13,014, gross rental income of $40,700, net rental income of -$3,435, other unspecified income of $33,865, and universal child care benefit of $320. [ 82 ] Again, the absence of more detailed information and full argument on the point renders it difficult if not impossible to determine with any precision the Applicant’s Guideline Income for child support purposes during the years in question.

However, it appears clear on the information that is available that the Applicant made significantly more income in the five years leading up to 2015,

and that this increased income has never been accounted for in the determination of his child support obligations. Under the circumstances, I find the Applicant’s contention that there are no child support arrears prior to 2016 to be somewhat disingenuous and illustrative of a troubling lack of regard for his support obligations. [ 83 ] The Respondent points to the Applicant’s July 24, 2020 affidavit which attaches a

Schedule A sworn on August 23, 2019. The

Schedule reveals that he owns a home worth $995,550, purchased a SUV in 2016, and has a RRSP with TD Bank valued at $61,344. He made contributions to that RRSP in 2017 and 2018.

His 2017 and 2018 tax returns appear to show that he sold his primary residence in 2017 and moved into a residence that was formerly characterized as a rental property. [ 84 ] In questioning, the Applicant acknowledged that despite his unilateral decision to reduce his child support payments he was able to invest in RRSPs, travel, purchase real estate, purchase a vehicle and trade stocks using savings from his employment. [ 85 ] There is a further troubling aspect to the Applicant’s contention that there are no current child support arrears prior to 2016.

Strictly speaking, the Applicant did ultimately pay off the arrears that were outstanding as of December 31, 2015, calculated on the basis of the unadjusted amount of child support stipulated in the Divorce Judgment.

However, in the MEP statement attached to the Applicant’s August 14, 2020 affidavit, it is clear that he owed $17,991.08 as of that date notwithstanding his significantly increased income during the years 2011 to 2015. [ 86 ] Fifth, I am satisfied that the Applicant’s attitude to his overall parental responsibilities to this child is relevant to a consideration of his intentions relative to his child support obligations. In this instance, the Applicant has not seen “A” since 2011, a period of almost 10 years.

The Applicant has not spoken to Alexander since 2015 and has never asked for his son’s telephone number. [ 87 ] I accept the Applicant’s general contention that the increased cost of access following “A’s” relocation to Ontario with the Respondent in July 2007, presented financial challenges, at least initially. However, there is no evidence before me that the Applicant took any concrete steps to actually address this issue with the Respondent so as to enable him to maintain regular contact with this child.

Indeed, the evidence suggests that the Applicant only had very infrequent contact with his son when work requirements brought him to Ontario and presented opportunities for access. Unfortunately, there is nothing before me to indicate how frequently even this limited access took place.

It is also clear that he declined access in at least one instance when the Respondent offered to cover the costs associated with access. [ 88 ] In my view, the Applicant’s actions, or rather lack of action, in terms of maintaining regular contact with his son reveals an intentional abdication of parental responsibility in this regard.

In addition to very limited personal contact over the years, there is evidence before me that “A” was unable to participate in sporting activities and events in the United States as a result of the Applicant’s failure to provide his timely consent to requests to permit “A” to travel outside of the country. [ 89 ] Finally, I take into consideration the conduct of the Applicant relative to his various court applications to reduce his monthly child support obligations to zero.

In my view, the Applicant has not been candid and forthcoming with the court in terms of information he has advanced through his various affidavits and in representations made to the court. Courts rely on litigants to be forthright and candid in their presentation of the facts supporting their applications for relief. [ 90 ] In his initial March 17, 2017 application, the Applicant claimed that his loss of work and subsequent inability to find other employment was the basis for his application to reduce child support.

He failed to disclose to the Respondent and the court at that time that he had remarried in 2011, and that he had additional responsibilities for two other children born in 2015 and 2017, respectively. It was only after the Ontario court highlighted the absence of evidence regarding the Applicant’s efforts to find new employment, finding him to be voluntarily unemployed, that he disclosed his 2011 remarriage and the existence of two other dependent children.

In his subsequent application, the matter currently before the court, he raised for the first time his decision to be a stay-at-home parent as the basis to have child support reduced to zero. [ 91 ] In his supporting affidavit sworn the same date as his March 17, 2017 application, the Applicant deposed that he was seeking employment and “despite best efforts” continued to be unemployed.

When he appeared before McCarthy J on November 2, 2017, representations were made to the court on his behalf by Duty Counsel who advised that he had lost his job in June 2015; that he had been unsuccessful in finding new employment; and that “he’s been cashing in some of his RRSP’s to be able to survive.” However, during questioning on August 27, 2020, the Applicant acknowledged that he made the decision to terminate his job search by the end of 2016, and has not sought work since that time.

He also conceded during questioning that he made the decision to be a stay-at-home parent in 2016. [ 92 ] While I am troubled by the Applicant’s failure to fully disclose his personal circumstances at the time of his initial application to reduce his child support to zero, I have serious concerns by the discrepancy between the Applicant’s March 17, 2017, affidavit, the representations of duty counsel to the court on November 2, 2017, doubtless based on information provided by the Applicant, and the responses provided at questioning.

If, as he testified during questioning, he ceased looking for work in 2016, as a result of his decision to stay at home with his two young children, he clearly was not looking for work in March 2017, and cashing-in RRSP’s in order to survive. [ 93 ] I have a similar concern regarding the conflict between the Applicant’s evidence at questioning and his previous affidavits regarding his telephone contact with his son.

In his reply affidavit sworn August 14, 2020, the Applicant responded to the Respondent’s contention that he has not made a consistent effort to see or contact “A” after the move to Ontario in July 2007. Paragraph 3 of his affidavit states as follows: ...I travelled from Calgary to visit “A” in Toronto on occasion after she relocated and we spoke by phone regularly.

However, due to her unwillingness to share in the travel expenses I was unable to sustain these trips and my relationship with “A” continued in the form of phone calls every other week... [ 94 ] Given his admission during questioning that he has not seen his son since 2011, has not spoken to his son since 2015, and does not know his son’s telephone number, I am left with a concern that the Applicant attempted to mislead the court in his prior affidavit wherein he deposed to on-going regular telephone communication with his son.

[ 95 ] The Applicant’s lack of candor relative to his new family responsibilities, his misleading information regarding the Respondent’s alleged agreement to accept a reduced level of child support, as well as his flawed claims regarding on-going contact with “A”, are circumstances that I take into account in my assessment of the Applicant’s overall credibility. [ 96 ] The Applicant's decision to discontinue his job search and, instead, to devote his full-time efforts to support his other children, necessarily involved an intentional decision to avoid his support obligations to his eldest son.

Notwithstanding a clear awareness of his on-going support obligations, he made the decision to avoid this obligation by directing all of his energies towards a new obligation. In such circumstances, he cannot avoid the consequences of avoiding, indeed repudiating, the first obligation through his reliance on the fulfillment of a different obligations.

In fact, he had a legal obligation to meet both of these obligations, not to favour one over the other. [ 97 ] I am satisfied that the evidence in this instance, including all of the background evidence presented, leads overwhelmingly to the conclusion that the Applicant intended to avoid or minimizing his pre-existing child support obligations. Conclusion [ 98 ] For the reasons set out above, I am not persuaded that the Applicant has established that he falls within the scope of the exception set out in s. 19(1)(

a) of the Guidelines. [ 99 ] The Applicant’s request to vary the Divorce Judgment to reduce his on-going

section 3 child support to $0 per month retroactive to January 1, 2016, is dismissed. I find that it is appropriate to impute income to the Applicant on the basis that his actions demonstrate a deliberate refusal to live up to his obligations to support his eldest child. I would impute income to him of $100,000 effective January 1, 2016. [ 100 ] The Applicant’s request to further vary the Divorce Judgment to direct that his share of

section 7 extraordinary expenses be reduced to 0%, retroactive to January 1, 2016, is also dismissed. I would set the Respondent’s Guideline Income at $87,774, based on her line 150 income in her 2019 tax return, and set their respective proportionate share of eligible

section 7 extraordinary expenses at 53.3% for the Applicant and 46.7% for the Respondent. [ 101 ] If the parties are unable to agree on the child support outstanding as of January 1, 2016, they may seek further directions from the court. Costs [ 102 ] In the ordinary course, the Respondent, the successful party in these proceedings, would be entitled to her costs. Before making a ruling on the issue of costs, I would briefly outline the parties’ respective positions on this issue.

In a nutshell, both parties seek solicitor-client costs in relation to this matter. [ 103 ] The Applicant seeks solicitor client costs citing the Respondent’s “unscrupulous and obstructionist behavior”, including her alleged unresponsiveness to his requests to explore alternative ways of resolving this dispute; her alleged actions to impede this application to vary child support; and what he describes as attempts to have this matter dealt with by the courts in Ontario. [ 104 ] The Respondent, on the other hand, seeks solicitor-client costs on the basis that the Applicant does not come before the court with clean hands given the significant changes in his evidence over the course of these proceedings.

The Respondent also suggests that the Applicant provided an incomplete

summary of the vexatious litigant proceeding before Rooke ACJ in order to discredit her relative to the 2018 confirmation proceedings in Ontario. The Respondent also maintains that the multiple applications filed by the Applicant resulted in significant legal costs, as did the necessity of taking the Applicant to questioning in order to clarify what she describes as his changing evidence. [ 105 ] I accept the Respondent’s contention that costs are typically awarded to the successful party at the conclusion of a trial or other proceeding.

However, the court retains a broad discretion on the awarding of costs. [ 106 ] The authority of the court to award costs is set out in Rule 10.31 of the Alberta Rules of Court . The Rule provides as follows: 10.31(1) After considering the matters described in rule 10.33, the Court may order one party to pay another party, as a costs award, one or a combination of the following:

a) the reasonable and proper costs that a party incurred to file an application to take proceeding or to carry on an action, or that a party incurred to participate in an application, proceeding or action, or

b) any amount that the Court considers to be appropriate in the circumstances, including without limitation, (

i) an indemnity to a party for that party’s lawyer’s charges, or (ii) a lump sum instead of or in addition to assessed costs. 10.33(1) In making a costs award, the Court may consider all or any of the following:

a) the result of the action and the degree of success of each party;

b) the amount claimed and the amount recovered;

c) the importance of the issues;

d) the complexity of the action;

e) the apportionment of liability;

f) the conduct of a party that tended to shorten the action;

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [107] The decision of Hutchinson J. in Jackson v. Trimac Industries Ltd, (ABQB), 138 AR 161, 8 Alta LR (3d)403, affirmed on costs, 1994 ABCA 199, predates the most recent Rules of Court. Nonetheless, I am satisfied that the comprehensivestatement of principle contained therein remains valid. I would summarize those principles as follows:

a) a trial judge has a wide discretion when awarding costs;

b) generally speaking, costs follow the event, i.e. the successful party is entitled to be paid a portion of his or her costs in pursuing theclaim;

c) the successful party is normally entitled to party-and-party costs. “It is not intended that the successful party receive fullindemnification of those fees and disbursements which it would be charged by its counsel” (per McDonald J. in Reese v. Alberta, (ABQB), 5 Alta. L.R. (3d) 40 (Q.B.) at para. 7;

d) costs on a solicitor-client basis are to be awarded in a “rare and most exceptional case” (per Freedman J.A. in Evaskow v. B.B.F.(1969), (MBCA), 71 W.W.R. 565 (Man. CA), at p. 570;

e) the practice in Alberta is that the court will order the unsuccessful party to pay a multiple of the fees set out in the applicable schedulewhen the case is “of considerable magnitude and complexity” (per Hutchinson J. in Jackson, at para. 13). Even then, the objective is notto provide full indemnity; f) “[D]eparture from the general rule of party-and-party costs requires extreme caution and should occur only in rare and exceptionalcircumstances.” (per Veit J. in Max Sonnenberg Inc. v. Stewart, Smith (Canada) Ltd., [1987] 2 W.W.R. 78 (Alta. Q.B.);

g) costs and damages should not be confused. Costs deal with the conduct of the litigation, whereas damages deal with the conduct of theparties that give rise to the action. (per Lutz J. in Olson v. New Home Certification Program of Alta. (1986), (ABQB), 44 Alta. L.R. (2d) 207 (Q.B.) [108] In my view, this is not an appropriate case for the awarding of solicitor-client costs, or costs that approximate same.

This is notone of those rare and exceptional circumstances where the awarding of such a level of enhanced costs is warranted. [109] I do not accept the Applicant’s suggestion that the actions of the Respondent were either “unscrupulous” or “obstructionist” inthis instance. The Applicant was at all times throughout these proceedings the party driving the matters forward.

As such, he was incontrol of the pace and frequency that his requests for relief from his child support obligations were placed before the court. [110] I am also not persuaded that the Respondent’s response to any of the applications initiated by the Respondent, including herattempt to have the Applicant declared to be a vexatious litigant, amounted to conduct that can properly be characterized as eitherunscrupulous or obstructionist. While she was not ultimately successful before Rooke ACJ on her vexatious litigant application, I amunable to find that her application was without merit.

To the contrary, I am satisfied that the Applicant advanced a reasonable argumentin support of her request to strike the Applicant’s seemingly duplicative application for relief previously denied to him. [111] I also do not accept the Applicant’s contention that a lack of responsiveness to requests to explore alternative ways to resolve adispute is a legitimate basis to award enhanced costs.

I would simply add that there is no evidence before me of any attempts on the partof the Applicant to resolve this matter outside of the formal court process. [112] With respect to the Applicant’s contention that the Respondent attempted to have this matter dealt with by the courts in Ontario,I am not satisfied that there is any merit to this suggestion. The Respondent concedes that she did initiate one application in Ontario to2019, to clarify

section 7 expenses and to obtain sole decision-making authority given past difficulties in obtaining the Applicant’sconsent allowing “A” to travel outside of Canada. However, there is nothing before me to suggest that this Ontario-based application inany way contributed to delay or otherwise added to the complexity of the within matter. [113] The Respondent’s request for enhanced costs in this instance is somewhat compelling. As set out above, I am satisfied that theApplicant was less than forthright or candid in presenting his request to be relieved of his on-going financial responsibilities for his eldestson.

As such, I accept the Respondent’s contention that he, in essence, changed his story mid-way through this proceeding when herevealed that his application was founded on the child care exception set out in s 19(1)(

a) of the Guidelines. I also accept theRespondent’s contention that she incurred additional costs as a result of the need to formally question the Applicant given his shiftingnarrative.

In my view, the Applicant’s lack of candor in his dealings with the Respondent and the court is aggravated by what I havepreviously found to be his attempt to mislead relative his affidavit evidence regarding on-going communication with “A”. [114] While I have come to the conclusion that this is not a situation involving “rare and exceptional circumstances” so as to justify anaward of solicitor-client costs, I am satisfied that the Respondent is entitled to some level of enhanced costs. As such, I would award theRespondent a lump sum of $5,000 over and above her taxable costs relative to this proceeding.

Heard on the 17 th day of September, 2020. Dated at the City of Calgary, Alberta this 3 rd day of February, 2021. M. David Gates J.C.Q.B.A. Appearances: E. Varga for the Applicant H. Fraese and L. Zaoral for the Respondent _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice M. David Gates _______________________________________________________ The year in the citation has been changed to 2021 from 2020. In paragraph 11 in the last sentence, the word “the” has been added to read “made the decision”.

Former paragraph 12 has been joined at the end of paragraph 13. The subsequent numbering of paragraphs has changed due to joining paragraph 12 to paragraph 11.