Dowds v Dowds, 2021 ABQB 958

Court of Queen’s Bench of Alberta Citation: Dowds v Dowds, 2021 ABQB 958 Date: 20211130 Docket: 4803 179777 Registry: Edmonton Between: Shelley Gail Dowds Plaintiff (Applicant) - and - Alexander John Dowds Defendant (Respondent) _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] A child-support recipient applied via the Court’s desk-application process for s. 9 (shared-parenting-context) and s. 7 (extraordinary expenses) child support (ongoing and retroactive for both).

[ 2 ] My decisions and reasoning on each aspect are outlined below. B. Retroactive s. 9 support for September 1, 2019 to December 10, 2019 [ 3 ] I conclude that no such (or any) support is payable by Mr. Dowds for this period, for these reasons: 1. by her July 26, 2019 order (specifically para 8), Richardson J. opened the door to a child-support-variation application by either party.

Paragraph 8 says "Either party is at liberty to file an application to vary the child support clauses in the Consent Divorce Judgment and Corollary Relief Order." That latter judgment and order (granted by Kendell J. on May 22, 2019 and filed on June 7, 2019) focused on the "father as primary parent" circumstances then prevailing and reflected the mother's income at that time of "0.00." It effectively made no direction on s. 3 (base) child support.

Per para 16 of that judgment and order: "There shall be a reservation of [s. 3 child support] payable by [the mother to the father] until December 31, 2019, with no ability of the ... father to seek retroactive support for the period until December 31, 2019." In other words, the divorce judgment and corollary-relief order effectively left child support after December 31, 2019 up in the air, not imposing any particular support obligation on the mother and, by definition, with the father as the primary parent then, same for him.

Accordingly, Richardson J.'s leave to the parties to "vary the child support clauses" in the earlier judgment and order effectively translated to leave to address child support "from scratch"; 2. Richardson J.'s order did not set, reflect or otherwise address the parties' respective incomes. Accordingly, it cannot serve as a window for either party into the other party's income at of late July 2019; 3. as far as I can tell, no application was brought until Ms.

Dowds' application, which (per her brief) was filed on December 10, 2019 i.e. about 3.5 months after the door was opened for such application; 4. the record does not disclose any particular reason or explanation for Ms.

Dowds' delay in bringing the variation application i.e. between the start of September 2019 (when shared parenting began) and mid-December 2019; 5. given the apparent absence of income-of-each-party information (or at least for the mother's income) as of late July 2019, and given the leave to "either party" to seek to "vary" child support, and given the apparent absence of any other particular window for the father to know of the mother's income between September and December 2019, I am not prepared to infer that the father was necessarily aware of the mother's income picture in that period.

The onus was on her, if she perceived an income imbalance (i.e. that assuming a straight set-off approach under s. 9 of the Child Support Guidelines, child support was payable by the father), to bring an application for such support or, at minimum, to raise the issue with the father. As far as I can tell, she did give any notice of a perceived need for child support until her application in mid-December 2019; and 6. I also note that Ms. Dowds did not pay any child support for the eight or so months preceding the start of shared parenting, during which time Mr. Dowds had primary parenting of the children.

I recognize that (per her evidence) she had no, or only nominal, income during that period. But the record discloses no, or no material, evidence explaining why that was so i.e. justifying her shifting from paid-employment status (albeit with a modest income) to effectively zero income for that care-by-father period. [ 4 ] As I see it, the applicable analysis here comes from DBS v SRG , 2006 SCC 37 and specifically its approach to "no initial order" circumstances (paras 80-84).

As discussed above, the starting point here was effectively "no child support order in place." And in contrast to the "no order" circumstance explored in DBS (where in the usual case the child-support payor would be perceived as acting unreasonably in assuming that no support was payable), here we have shared parenting (as of summer 2019) and no obvious or apparent window for the father into the mother's income, coupled with Richardson J.'s invitation for either party to apply i.e. presumably if either party perceived an imbalance of incomes and (per a straight-set-off approach) for a net amount of support payable to the party so perceiving. [ 5 ] All to say: the mother had the onus of applying or at least giving notice here, and I see no blameworthy conduct by the father is not making support payments in this (September to mid-December 2019) period.

C. Retroactive s. 9 support from December 10, 2019 to end of February 2020 [ 6 ] The mother's evidence is that she agreed in January 2020 to child support of $750 per month payable by the father (i.e. less support than she believes she was otherwise entitled to) because the father was carrying the matrimonial-home expenses (mortgage and other carrying costs). Her further evidence is that he did so, but only until "February 2020", with no particular "stop date" provided. [ 7 ] I find that, in these circumstances, the father has no further child-support obligation for this period. D.

Retroactive s. 9 support from March 1, 2020 to November 5, 2020 [ 8 ] The mother filed an application on November 5, 2020 seeking (among other relief) retroactive s. 9 support "for the period of September 1, 2019 to November 30, 2020 ...."

[ 9 ] I have already found that no retroactive support is payable by the father for September 2019 through the end of February 2020. [ 10 ] Is the father required to pay retroactive child support for March through November 2020? [ 11 ] The interim without-prejudice order of January 16, 2020, which directed straight-set-off s. 9 support of $750 (father to mother), stated that "Either party may bring this matter back to Court on ten days' notice to the other party if there is a change in a party's circumstances, specifically a change to a party's cash flow." [ 12 ] As noted, per the mother, the father was receiving a break on child support because he was carrying, or expected to carry, the home expenses.

As also noted, he apparently no longer covered any home-related expenses after the end of February 2020.

Per the mother, she made a $2,000 payment on the mortgage, which staved off foreclosure proceedings for six months, and the house was eventually sold (with no equity generated for either party) in summer 2020. [ 13 ] The mother did not apply to adjust child support retroactively until November 5, 2020, even though she was apparently aware (per para 8 of her November 4, 2020 affidavit) of the father's ceasing to cover house-related expenses at or around the time of that ceasing. [ 14 ] The father was obviously aware that he was no longer carrying home-related expenses from the moment of ceasing. [ 15 ] On the other hand, the record does not reflect any request by the mother for increased support i.e. as of the time the father ceased covering these expenses or any time before November 5, 2020.

And (as above), the record does not disclose that the father had any apparent window into the mother's income or at least her household income between March and November 2020. [ 16 ] During that period, she was initially living with her parents.

As of mid-August 2020, she began living with a new partner. [ 17 ] We are not dealing with any (or any material) non-disclosure-of-income by the father: his income has been relatively steady and even throughout all the years in question (approximately $80,000 to $85,000). [ 18 ] The practical problem here goes the other way i.e. the father not necessarily having a window into the income in the mother's household income from time to time. [ 19 ] In my view, in the shared-parenting situation here, and with the mother learning of the changes in the father's expenses, and assuming those changes fell within the scope of the "change[s] to a party's cash flow", she had a practical obligation to notify the father of her to wish to seek increased support i.e. beyond the $750 initially agreed i.e. to inform him of her then-prevailing circumstances and her (perceived-by-her) need for increased support. [ 20 ] With the record showing no such notice i.e. before the November 5, 2020 application, I find no entitlement to retroactive support for February to November 5, 2020.

E.

Retroactive support from November 5, 2020 to the present [ 21 ] As of November 5, 2020, the mother put the father on notice that, as she gauged it, $750 was insufficient child support. [ 22 ] In his brief, the father did not explain, or try to explain, why increased support should not be payable from this point i.e. assuming a straight-set-off approach is appropriate, other than arguing that the mother is not earning sufficient income. [ 23 ] On that point, I accept her evidence of her current employment (school-bus driver) squaring with her historical employment (i.e. during their relationship), that such employment gives her flexibility in looking after the children and saves day-care costs, and that she is devoting considerable time to pursuing a psychology degree (as part of an overall plan to enhance her working life). [ 24 ] I also accept the mother's evidence that she and her current partner have essentially separate financial lives, with his contributions being effectively limited to paying approximately two-thirds of their current rent (given her strained financial circumstances i.e. with him paying more than his otherwise-appropriate one-half share). [ 25 ] With the father's eyes opened to the mother's position that $750 was no longer sufficient support, and with that figure having been set on an interim without-prejudice basis, and with the mother seeking straight-set-off child support, and with the father not articulating any particular, or at least any material, reasons for adjustments under either s. 9(

b) or (

c) of the Guidelines, I find that the mother is entitled to retroactive s. 9 support (straight-set-off basis) from November 5, 2020 to the present, based on the incomes reported by each party for 2019. F. Ongoing s. 9 support [ 26 ] Child support will continue to be payable under s. 9 (straight-set-off approach) going forward, based on the parties' reported incomes for 2020. [ 27 ] I also direct the standard exchange of tax returns and assessments by June 1st of each year going forward and "payments to MEP" i.e. the same as paras 3 and 4 of the January 16, 2020 order, as well as a standard "recalculation" clause. G.

Section 7 expenses (retroactive and ongoing)

[ 28 ] The mother seeks both retroactive and ongoing

section 7 expense payments by the father. [ 29 ] I find that: 1. the son's orthodontic expenses fall within the scope of s. 7 here; 2. the younger daughter's orthodontic expenses do not have to be addressed (with her expenses being covered by the care provider); 3. the children's historical participation in gymnastics and hockey supports the reasonableness of their continued (post- separation) participation in these activities, particularly since each is only pursuing a single extracurricular activity per year; 4. the retroactive s. 7 expenses outlined in the table accompanying the mother's brief are all reasonable and proportionate and entirely defensible for this family's overall combined income; and 5. as a result, I find any refusal by the father to consent to such activities to have been unreasonable. [ 30 ] I approve the retroactive expenses outlined in the mother's table, assuming that the burden-sharing percentages reflect the parties' actual tax-reported incomes for both 2019 and 2020. [ 31 ] The mother acknowledged that the father's benefit-program premiums are properly a

section 7 expense. The parties are directed to fold those premiums into the s. 7 analysis. [ 32 ] As for ongoing s. 7 expenses, I approve the son's ongoing orthodontic expenses plus the continued gymnastics and hockey activities as proper s. 7 expenses, to be borne by the parties proportionate to their tax-reported incomes. H. $1,000 payment [ 33 ] The mother is entitled to a $1,000 payment from the father (per para 22 of the divorce judgment and corollary relief order).

The father contends that he is owed $4,500 by the mother i.e. that, on a net basis, she owes him $3,500. [ 34 ] I do not see any evidence of the cross-debt in the materials. [ 35 ] I direct that father clear his $1,000 debt to the mother via minimum $100 monthly payments starting January 1, 2022. I. Conclusion [ 36 ] If the parties require clarification of any aspect, I invite them to contact me via my assistant (Stacy Adams). [ 37 ] In view of the divided success here, each party will bear his or her own costs. [ 38 ] Given that Ms.

Lintz-Edwards prepared a draft order (accompanying her submissions), I would ask that she revise that draft to reflect the within decisions and directions, send it to Ms. Acton for her comments, and then send the revised order (with any comments from Ms. Acton i.e. on any aspect in dispute) to me via Ms. Adams. [ 39 ] I thank the parties for their helpful submissions. Heard by way of desk applications (materials assigned in August 2021). Dated at Edmonton, Alberta this 30 th day of November, 2021. M. J. Lema J.C.Q.B.A. Appearances: Keira Lintz-Edwards Legal Aid Alberta

for the Applicant (Plaintiff) Barbara L. Acton Acton Law Office for the Respondent (Defendant)