Toronchuk v Wainwright, 2021 ABQB 862

Court of Queen’s Bench of Alberta Citation: Toronchuk v Wainwright 2021 ABQB 862 Date: 20211101 Docket: FL03 11105 Registry: Edmonton Between: Phyllis Bonnie Toronchuk Cross Applicant - and - Ricky Arthur Wainwright Cross Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ Introduction and Background [ 1 ] This is an application for retroactive child support under ss 3 and 7 of the Child Support Guidelines , brought by the Cross- Applicant (Applicant) against the Cross-Respondent (Respondent). [ 2 ] Child support was last addressed by an Order of this court on March 31, 2011 (the 2011 Order). The 2011 Order provided the following: 1.

Retroactive child support as of March 31, 2011 was declared in the amount of $38,221, inclusive of the Respondent’s proportionate share of childcare costs, dental expenses and music lessons. 2. The Respondent’s estimated 2011 guideline income was set at $85,000. The Applicant’s guideline income, based on 2009 tax information, was $73,722.

Section 3 child support was directed at $747 per month, and the Respondent’s contribution to child care expenses was set at $148 per month. Music lessons and medical and dental expenses were declared to be

section 7 expenses to be shared

proportionately, with the Respondent to pay “his proportionate share (53.55% currently) of the child’s s. 7 expenses as they arise.” 3. The parties were directed to share income tax information by June 30 of each year. [ 3 ] The Respondent had seen the child only intermittently before the 2011 Order, and advised the Court at that time that he was not seeking parenting time. [ 4 ] Following the 2011 Order the parties had little if any contact. Neither party shared income tax information with the other. The order was enforced by the Alberta Maintenance Enforcement Program (MEP).

The Respondent was required to pay $1100 per month, consisting of $747 for ongoing s 3 child support, and $148 for child care (until 2016), with the remainder going to arrears. [ 5 ] In April 2020 the child, then 16 years old, left the Applicant’s home and moved in with the Respondent. The child, now 17 years of age, still lives with the Respondent and is attending Grade 12. [ 6 ] The Respondent filed a docket request in late 2020 raising parenting and child support issues. Both parties appeared in Docket Court and in an Early Intervention Case Conference. Parenting issues were settled, but child support was not.

The Respondent still owed significant arrears to the Applicant. After financial disclosure was provided, the Applicant indicated an intention to seek retroactive s3 and s7 child support from 2011. The Respondent did not pursue his application for child support, on the understanding that amounts that would otherwise be owing by the Applicant to the Respondent for child support would be set off against his obligation to her.

Arrears [ 7 ] MEP records indicate arrears as of August 16, 2021 in the amount of $25,116 plus the Respondent’s proportionate share of physiotherapy and dental expenses incurred by the Applicant in late August 2021. The arrears reflect the fact that the $38,221 arrears declared in the 2011 Order have been reduced but not repaid. The Respondent states that he paid $1100 a month every month since 2011, but this is clearly inaccurate as that would have resulted in a larger proportion of the arrears being paid off.

Further, annual MEP statements submitted by the Respondent show that lesser amounts were paid for a number of years. [ 8 ] Neither party has challenged the MEP calculation of arrears, and there is no application to retroactively decrease or rescind arrears. Retroactive

Section 3 Support [ 9 ] In the 2011 Order, the Respondent’s guideline income was estimated at $85,000.

However, his income as disclosed in this application has increased significantly, as follows: 2011 $61,969 2012 $129,985 2013 $61,251 2014 $176,705 2015 $133,668 2016 $100,536 2017 $106,365 2018 $133,535 2019 $134,711 2020 $129,535 [ 10 ] In calculating retroactive support, the Applicant has commenced in 2011, thus accounting for the Respondent’s lower than estimated income in that year (as well as in 2013). [ 11 ] The Applicant sought to have the Respondent’s 2020 income set at $174,635 based on paystub information, rather than tax return information.

I have employed tax return information for 2020, as for previous years. This is more reliable information in the circumstances, where the Respondent works out of town, and payments from his employer likely include reimbursed expenses. [ 12 ] The Applicant calculates retroactive

section 3 support by comparing what should have been paid for each year based on actual income with the $747 amount provided by the 2011 Order. The Applicant has also deducted child support amounts that should have been paid by the Applicant to the Respondent from May 2020 through September 2021. The resulting retroactive

section 3 claim is $18,730. [ 13 ] The Respondent agrees that his actual income was as shown in his tax returns, and that he did not disclose changes in his income to the Applicant. [ 14 ] The Respondent’s position is that the child’s best interests were met when he regularly paid $1100 per month, as this was sufficient to provide for the child, particularly given the Applicant’s own ability to support the child.

[ 15 ] The Respondent’s position regarding the child’s best interests is not consistent with either the facts or the law. As to the facts, the Respondent did not pay $1100 per month, each and every month, as he asserts. MEP records that he provided with his written submission make this clear. Further, the Respondent ignores the fact that the $1100 payments did not relate only to ongoing support, but also included payments on arrears of $38,221 declared owing in the 2011 Order. [ 16 ] As to the law, the Child Support Guidelines and the

interpretation of those guidelines, notably by the Supreme Court of Canada in Michel v Graydon , 2020 SCC 24 ( Michel ) and Colucci v Colucci , 2021 SCC 24 ( Colucci ), and by the Alberta Court of Appeal in Henderson v Micetich , 2021 ABCA 103 ( Henderson ), make it clear that the Respondent’s submission simply does not accord with the law. The child’s best interests are not determined by the Respondent’s or anyone else’s subjective opinion as to what level of support is suitable. The child is entitled to be supported in relation to the payor’s income.

The law is summarized in Henderson at para 37 : Child support is based on the payor’s guideline income – not on the judicial perception of what a child’s needs ought to be, the payor’s priorities, the relative prosperity of the households, or their respective household budgets.

The concepts of means, needs, and other circumstances that were the overarching considerations in pre- Guideline child support applications, and the subjective view of individual judges as to what constitutes adequate support, have been supplanted by the certainty provided by the Guideline table amounts, based on the income of the payor parent.

Parents know that guideline income is to be assessed on an annual basis and that current and reliable financial disclosure is generally required to facilitate assessment. [ 17 ] Michel , Colucci and Henderson build on the earlier Supreme Court of Canada decision DBS v SRG , 2006 SCC 37 ( DBS ) regarding four factors properly considered in determining whether retroactive support should be ordered by the Court: delay in the commencement of an application for increased support; conduct of the payor parent; circumstances of the child; and hardship the award might entail. [ 18 ] The questions of alleged delay and the conduct of the payor parent are appropriately considered together.

The assessment of delay has developed since DBS . DBS suggested that the date of retroactivity should generally be the date of “effective notice” of a claim for increased support, and that retroactive orders should generally extend no further than three years before effective notice. However, these presumptions were subject to an important stipulation: that in the event of “blameworthy” conduct by the payor, the more appropriate date of retroactivity may be the date of the payor’s increase in income.

Blameworthy conduct includes not disclosing a material increase in income that would be expected to alter the amount of child support: DBS at para 124 . In the result, as stated in Colucci , the date of retroactivity is often the date of a material increase in income.

This is because “[i]t would be ‘untenable to suggest that a parent who fails to provide financial disclosure can assume that the amount being provided is adequate because the recipient parent has not brought a court application’”: Colucci at para 43 , citing Brear v Brear , 2019 ABCA 419 at para74. [ 19 ] In this case, the 2011 Order estimated the Respondent’s guideline income and required the sharing of income tax information on an annual basis. It also provided a substantial award for retroactive support.

Clearly, the Respondent was aware that support was based on and should be adjusted to accord with guideline income. While the Respondent’s guideline income for 2011 was in fact less than the estimated guideline income, this situation changed significantly in 2012, when his actual income was more than 150% of the estimated guideline income. This is clearly a material increase that would be expected to alter the amount of child support payable.

This increase, and the noted provisions of the 2011 Order, mean that the Respondent’s failure to disclose his increased income in 2012, and in later years, was blameworthy conduct, justifying a retroactive order to the date of the increase. The Applicant’s recalculation of support from the 2011 Order is to the Respondent’s advantage, as it accounts for his lower income during that year. [ 20 ] The circumstances of the child and the issue of hardship are also appropriately considered together in this case.

The Respondent submits that retroactive support would cause undue hardship to him, and would not be in the child’s best interests, as the child is now in his care. The Respondent also asserts, in his most recent submission, that he is unemployed at this time. I do not have evidence to support this assertion. The Respondent’s work appears to be seasonal – I note that in 2020, when his guideline income was $129,535, the Respondent received EI income in the amount of $4865.

There is no basis to conclude that any temporary unemployment would cause undue hardship to the Respondent or negatively affect the child in any way. [ 21 ] The Respondent has not commenced a formal undue hardship application under s 10 of the Guidelines , and the court has not been provided with information regarding household income for either party.

However, the Court’s discretion regarding undue hardship is broader in the context of retroactive support than ongoing support: Henderson at para 67-68 . [ 22 ] I accept that the Respondent would have incurred expenses when the child suddenly came into his care (for a computer, clothing, etc), and that he continues to incur expenses as the child remains in his care. The child will be 18 years of age in a few months, but will remain a child of the marriage at least until his graduation from high school, anticipated to be in June 2022.

The Applicant has not paid child support and, so long as arrears remain outstanding, the Respondent accepts that support that would otherwise be payable will go towards offsetting his obligation to pay arrears. [ 23 ] While I accept that these circumstances will impose some hardship on the Respondent, and that this has the potential to negatively impact the child now in his care, I note that the Respondent has not provided evidence to demonstrate “tangible” hardship, as required in Henderson at para 70 . [ 24 ] Given the lack of evidence, I am not satisfied that potential hardship should weigh against a retroactive award or affect its temporal scope.

Any hardship can be addressed by a payment plan, as suggested by Martin J in Michel at para 124 and by the Court of Appeal in Henderson at para 69 , citing Goulding v Keck , 2014 ABCA 138 at paras 56-58 . This could include potentially a stay for a period of time. I will return to this point later. Retroactive

Section 7 Expenses [ 25 ] The 2011 Order provided that the Respondent was to pay $148 towards child care expenses (53.55% of $390). Music lessons,

and medical and dental expenses were declared to be

section 7 expenses to be shared proportionately, with the Respondent to pay his proportionate share of the expenses “as they arise.” [ 26 ] The Applicant’s guideline income in the 2011 Order was set at $73,722, based on 2009 tax information. The Applicant, like the Respondent, was directed to exchange income tax information each year.

She also did not exchange information on an annual basis, but has provided disclosure in the context of this application. [ 27 ] The parties’ actual income, and the Respondent’s actual proportionate share of s 7 expenses are set out below: Year R’s income A’s income R’s share 2011 $ 61,969 $ 81,712 43.13% 2012 $129,985 $ 61,274 67.96% 2013 $ 61,251 $ 98,207 38.41% 2014 $176,705 $172,157 50.65% 2015 $133,668 $101,524 56.83% 2016 $100,536 $ 75,162 57.22% 2017 $106,365 $ 46,369 69.64% 2018 $133,535 $139,870 48.84% 2019 $134,711 $ 79,815 62.79% 2020 $129,535 $ 61,631 67.76% [ 28 ] The Respondent’s required monthly contribution to childcare under the 2011 Order ($148) was enforced by MEP until 2016.

The Applicant has not calculated or sought a retroactive claim based on the Respondent’s actual proportionate share of this childcare expense. [ 29 ] MEP did not enforce the other s 7 expenses referred to in the 2011 Order, until 2021. From 2011 through 2020, the Applicant did not provide receipts for these expenses to MEP or take other steps to enforce this part of the 2011 Order. [ 30 ] Initially, the Applicant made a retroactive s 7 claim in the amount of $23,267.

This included expenses specified in the 2011 Order, as well as expenses related to other activities, including skiing, specialized tutoring, and the cost of a computer. The latter expenses had not been agreed to by the Respondent or approved by the Court in advance.

At my request, the Respondent recalculated the s 7 claim to exclude these amounts; the revised retroactive s 7 claim is $15,814. [ 31 ] The Applicant submits that, to a large extent, the s 7 support that she seeks for expenses detailed in the 2011 Order is not truly “retroactive”, but more in the nature of arrears, as the Respondent was already obligated to pay 53.55% of these expenses and has not done so. But the 2011 Order provided that he was to pay his share of the expenses “as they arise”, which contemplates communication of the expenses “as they arise”.

That did not occur; the expenses do not appear as arrears on the MEP account; and MEP only accepts receipts for s 7 expenses within one year of their being incurred (see alberta.ca/mep-section-7-expenses.aspx). [ 32 ] While the application may be characterized as primarily an application for retroactive enforcement, rather than a retroactive determination of entitlement or quantum, in my view it raises the same issues as other retroactive orders.

The Court has a discretion as to whether or not the order should be granted, and the appropriate exercise of that discretion brings into play the factors of delay in bringing the application, blameworthy conduct by the payor, circumstances of the child, and hardship entailed by the award. [ 33 ] In relation to the s 3 claim, any so-called “delay” on the part of the Applicant was caused by a lack of relevant information provided by the Respondent. The s 7 claim is different.

The Applicant had the relevant information to claim from the Respondent his proportionate share of expenses as set in the 2011 Order, and did not do so. Was this delay unreasonable? [ 34 ] In McCarty v McCarty , 2016 ABQB 91 ( McCarty) , Renke J provided a useful

summary which has since been relied on in a number of decisions ( SMF v BWF , 2019 ABQB 806 ; Friesen v Friesen , 2020 ABQB 103 ; Nyereyogona v Schofield , 2021 ABQB 662 ). At paras 163-168 of McCarty , Renke J offered the following principles in assessing reasonable and unreasonable delay: 163 According to Justice Bastarache, “[t]he circumstances that surround the recipient’s choice … not to apply for support earlier will be crucial in determining whether a retroactive award is justified:” DBS at para 100 . The “circumstances” involve the applicant payee spouse and the payor spouse.

A “reasonable excuse” would be a delay based on reasons or on rationally defensible considerations. “Unreasonable delay” is a delay for no reasons or inadequate reasons; it is “arbitrary” delay: DBS at para 101 . 164 Reasons for delay may be personal to the payee spouse. These could include (

i) a lack of financial means to bring an application; (ii) a lack of “emotional means” to bring an application; (iii) inadequate legal advice; or

(iv) lack of knowledge or information about the payor’s financial status. DBS at paras 101, 103 . Reasons for delay may be based on the relationship between the payor and payee spouse, including (v) “justifiable fear” that a payee spouse will react vindictively to an application, to the detriment of the family; (vi) pressure or intimidation of the payee spouse by the payor spouse. DBS at paras 101, 102 .

Reasons for delay may be based on the conduct of the payor spouse (linking this factor to the next factor), including: (vii) failure by the payor parent to inform the payee parent of income increases in a timely manner (thereby contributing to the payee’s lack of knowledge). … 166 In any event, even a finding of unreasonable delay does not eliminate a child’s right to enhanced support. The right is the child’s and cannot be “waived” by the payee parent.

Unreasonable delay is just one factor considered in determining the appropriate balance between the payor parent’s interest in certainty and the child’s interest in adequate support: DBS at para 104 . [ 35 ] The words of the Court of Appeal in Henderson , at para 44 , provide additional guidance: Any delay on the part of a recipient parent must be viewed in light of available information, resources, and social context, including gender, social and economic inequities.

Given the structure of the Guidelines and the well understood, and now widely accepted, philosophy that child support is an obligation on the part of both parents, the amount of which depends on the payor’s income, there will be few cases where delay can be truly seen as unreasonable or a factor that should preclude the award of previously-owed support to children. [ 36 ] The evidence on this application did specifically address reasons why the Applicant had not previously taken steps to enforce payment of s 7 expenses.

However, relevant contextual factors do emerge from the evidence. [ 37 ] The parties were in a brief relationship and never lived together. Initially, the Respondent exercised infrequent parenting time, approximately one day every other month. In June 2010, the Respondent stopped seeing the child. This is noted in the

preamble to the 2011 Order, as well as his consent to delete parenting time provisions in a prior Consent Order. [ 38 ] The 2011 Order was the result of an application commenced in December 2007. The

preamble to the Order states that the application was delayed due to the Respondent’s failure to provide full financial disclosure. The provisions of the 2011 Order regarding retroactive support make it clear that the Respondent had not been paying appropriate support for the child up to that time. [ 39 ] From 2010 to April 2020, the child was cared for solely by the Applicant. He took piano lessons for some time. Later, his primary extracurricular activity was freestyle skiing. This involved out-of-town camps, which required hotel stays.

In 2017 he had some difficulties with school, and the Applicant incurred tutoring expenses with Sylvan Learning and bought him a laptop computer to make school work more accessible to him. [ 40 ] The Applicant observes that, without the Respondent’s proper support, she was forced to take extra work to make sure that the child did not go without. When they needed extra money, she worked more, sometimes out of town, sacrificing her time with the child to ensure she could financially support him. [ 41 ] In 2020, the child left the Applicant’s home and moved in with the Respondent.

He had been engaging in drug and alcohol use, which was against the Applicant’s house rules. He remains living with the Respondent and apparently is doing well. There has been little communication with the Applicant. The Applicant says that the Respondent has impeded her efforts to contact the child, or to arrange counselling to repair the relationship.

The Respondent says that that the child has no interest in counselling and that the child, now 17 years of age, makes his own decisions about contact with the Applicant. [ 42 ] It is not clear that there were reasons personal to the Applicant for not enforcing payment of s 7 expenses. There would have been no or only a minimal cost to provide receipts to MEP. She may have had inadequate legal advice. Counsel for the Applicant notes that, after 2011, the parties did not return to court until 2020.

However, the Applicant was enforcing other aspects of the 2011 Order through MEP. [ 43 ] The Applicant has attested that, in addition to being the sole caregiver for the child, she was taking on extra work to make up for the Respondent’s lack of support. It would be understandable that she would not want to commence a new Court application in these circumstances, especially given the delays and difficulties encountered with getting disclosure during the previous application.

But again, this does not explain why she did not take the simple steps required to collect s 7 expenses already provided for in the 2011 Order. [ 44 ] There is no evidence that the Applicant feared the Respondent generally or his potential reaction to enforcement steps, although she has attested to an unpleasant encounter with his partner in August 2021. [ 45 ] The Applicant lacked knowledge about the Respondent’s increased income. While this does not directly relate to enforcement of the 2011 Order, there may have been an indirect impact.

The Respondent did not always pay the $1100 amount that he was directed to pay, and the arrears amount remained substantial. The Applicant could easily have concluded that adding to the arrears amount was fruitless. Had she known that, by 2014, the Respondent’s actual income had more than doubled from the earlier estimate, this might well have led her to take a different approach.

Did the delay cause prejudice to the Respondent? [ 46 ] The Applicant’s unilateral decision to incur significant expenses relating to tutoring and freestyle skiing, would prejudice the Respondent if he were required to pay for these items after the fact, without having the ability to object or challenge the reasonableness of these costs. However, the Applicant’s revised calculations reducing the s 7 claim from $23,267 to $15,814 removes this prejudice. [ 47 ] The Respondent suggests that the Applicant could have obtained dental insurance.

The Respondent could have made this submission in 2011, and could have contributed his proportionate share to the cost of the child’s insurance. He did neither. [ 48 ] The expenses included in the $15,814 claim were either directly specified in the 2011 Order, or come within a reasonable

interpretation of its terms (eg, modest summer camp costs, which provided both extracurricular recreation and childcare; and orthodontic care costs). There is no doubt that the Respondent was obligated to pay his proportionate share of these expenses. Adding these costs to his unpaid arrears later, rather than earlier, does not prejudice him. [ 49 ] The expenses included in the $15,814 claim were reasonable, even necessary, expenses incurred by the Applicant to care for the child.

The Applicant’s funds went to pay for these and other expenses, while the Respondent remained far in arrears in fulfilling his obligations. The Applicant took on extra work because of the unequal sharing of financial responsibilities. She sacrificed time with the child, notwithstanding that she was his sole caregiver. This was not in the child’s best interests. [ 50 ] The Respondent’s interest in certainty is not a compelling factor in relation to s 7 arrears, any more than s 3 arrears, given his blameworthy conduct.

The Respondent has been or should have been aware for years that he was not fulfilling his child support obligations. [ 51 ] In all of the circumstances, it is my view that the Applicant’s delay in enforcing s 7 expenses does not preclude her retroactive claim for s 3 expenses in the amount of $15,814. Payment Terms [ 52 ] The Respondent’s current guideline income, based on his 2020 tax information, is $129,535. If the child remained with the Applicant, the Respondent would be required to pay $1146 per month for ongoing s 3 support, plus his share of s 7 medical and dental expenses.

This is similar to the $1100 per month that he was paying before the child’s move. He paid this amount in years where his income was less than his current income, and he has not provided evidence of any undue hardship as a result. [ 53 ] As the child is now living with the Respondent, he is incurring additional expenses. He has not detailed what those expenses are, or provided evidence of undue hardship in his current circumstances. [ 54 ] The Applicant’s guideline income for 2021 is set at $85,000 based on her estimates. Her resulting s 3 obligation is $747.

She is also be responsible for her proportionate share of s 7 medical and dental expenses. [ 55 ] In assessing the Respondent’s ability to pay arrears, I am guided by the amount that he would be required to pay the Applicant, had the child remained with her. I assume, given his payment history and in the absence of evidence to contradict this, that the Respondent could make the guideline payment without undue hardship. As there is no evidence of costs incurred by the Respondent to care for the child, I assume that these are adequately accounted for by setting off the Applicant’s s 3 obligation of $747.

The resulting required payment by the Respondent towards arrears is $1146 - $747 = $399. I direct that the Applicant’s s 3 obligation operate as a credit towards the Respondent’s arrears, and that the Respondent pay an additional $399 per month towards arrears. This payment

schedule should continue until at least the end of June 2022, when the child is expected to graduate from high school. It can be reassessed after that time. If the child will be attending a post-secondary educational institution, there may be a continuing off-set against the Respondent’s arrears payments.

Otherwise, the Respondent should be in a position to pay at least an amount equivalent to a s 3 payment based on his guideline income. [ 56 ] I sought submissions regarding whether some portion of a retroactive award might be paid directly to the child, as occurred at the trial level in Michel : see para 6 ; the trial decision was upheld by the Supreme Court, without commenting on this aspect: see para 37. The Applicant responded that such an order would be inappropriate, if not impossible, while the child remains a minor. I agree.

It may be that this point might be revisited in the future, if the child enrolls in a post-secondary educational program.

Conclusion [ 57 ] Arrears are declared owing by the Respondent to the Applicant as of September 30, 2021 in the amount of $59,660 ($25,116 arrears, plus $18,730 retroactive s 3 support, plus $15,814 retroactive s 7 support), subject to adjustments since August 16, 2021. [ 58 ] The Applicant has an ongoing s 3 obligation in the amount of $747, based on a guideline income estimated at $85,000, which will operate to reduce the Respondent’s arrears commencing on October 1, 2021 and continuing each month thereafter. [ 59 ] The Respondent is directed to pay $1146 per month towards arrears, with the Applicant’s s 3 obligation operating as a set off, resulting in a required monthly payment on arrears commencing October 1, 2021 in the amount of $399. [ 60 ] The parties are each responsible for their proportionate share of s 7 medical and dental expenses, based on their guideline incomes of $85,000 (Applicant) and $129,535 (Respondent).

Heard on the 29 th day of September and the 27 th day of October, 2021. Dated at the City of Edmonton, Alberta this 1 st day of November, 2021. J.M. Ross J.C.Q.B.A. Appearances: Teri R Burant of Emery Jamieson LLP for Phyllis Toronchuk Ricky Wainwright Self-Represented Litigant