Spiess v Spiess, 2021 ABQB 961

Court of Queen’s Bench of Alberta Citation: Spiess v Spiess, 2021 ABQB 961 Date: 20211203 Docket: 4803 182567 Registry: Edmonton Between: Tegan Anne Spiess Applicant/Cross-Respondent - and - Garrett Allen Spiess Respondent/Cross-Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M.J. Lema _______________________________________________________ A. Introduction [ 1 ] How (if at all) is the income of a new spouse or partner factored into the ss 9(

c) Federal Child Support Guidelines analysis when determining child support under shared parenting?

[ 2 ] In Spiess v Spiess , 2021 ABQB 730 , I invited further submissions from the parties on this point: … I am left with a picture (on the numbers reported in the parties’ respective concise letters) of the mother’s household income, largely reflecting her new partner’s sizeable income, producing a standard of living equal to, if not far exceeding, that in the father’s household. The narrow question becomes whether the father can effectively piggyback on the mother’s new partner’s income i.e. to carry the full weight of child-care expenses in the mother’s household i.e. with no contribution from him . That is his position i.e. no

section 9 support payable by him to the mother. The mother rejects this “full off-load” position. [paras 41-44] [emphasis added] [ 3 ] I received further submissions from each side on this issue. [ 4 ] For the reasons below, I find that no adjustments should be made under ss 9(

c) to the support payable under ss 9(

a) of the Guidelines . B.

Section 9 Federal Child Support Guidelines [ 5 ] Here is s. 9: If each spouse exercises not less than 40% of parenting time with a child over the course of a year [which applies in this case], the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared parenting time arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought . [emphasis added] [ 6 ] The Alberta Court of Appeal explored ss 9(c), our current focus, in MacDonald v Brodoff , 2020 ABCA 246 : … the factors under s 9(c) [are] the condition, means and needs of each parent and child for whom support is sought. Courts are conferred broad discretion in considering these factors. The analysis is contextual and highly fact-dependent.

Courts are alive to the standard of living the child experiences in each household and “the ability of each parent to absor[b] the costs required to maintain the appropriate standard of living in the circumstances”: Contino at para 68. The over-arching policy behind s 9 and particularly s 9(

c) is that in shared parenting arrangements, children should enjoy a reasonably consistent living standard in each home. This policy consideration is underscored in Contino , yet often over-looked in practice. An assessment of the condition, means and needs goes well beyond Guidelines income, and considers each party’s overall financial position and lifestyle, whether derived independently or from contributions from others such as new partners or parents, and any “other circumstances.” All parents, whether in a shared parenting arrangement or not, have an obligation to provide for their children.

The s 9 framework provides tremendous discretion to a judge in arriving at a support figure they think is fair in all the circumstances . … There is no presumption in the set-off amount. Viewed contextually and holistically, the chambers judge’s conclusion that the child is provided for by both of his parents in households of similar means, was reasonable. [paras 15 and 55] [emphasis added] [For an overview of s. 9 generally and specifically the ss 9(

c) exercise, see also Gottinger v Runge , 2018 SKQB 343 (Elson J.) (paras 23 , 28, 30 and 31)] [ 7 ] In Desjardins v Bouey , 2013 ABQB 714 , R. Brown J. (as he then was) underscored the need for sufficient ss 9(

c) evidence: … in considering the conditions, means, needs and other circumstances of the child, and of each parent (as is required by

Section 9(c), the Court must … have evidence before it regarding the standard of living enjoyed by the child in each household, and the financial situation of each parent (which, again, would require accounting for any contribution to each parent’s financial situation by a new partner or spouse). This is because the Court must assess each parent’s ability to maintain the appropriate standard of living in the circumstances . At a bare minimum, parties must provide financial statements or child expense budgets must be provided. ( Wilkie v Wilkie , 2009 SKQB 119 ).

While some financial information was put before the Court for the purposes of the earlier application, no evidence was put before me regarding the standard of living enjoyed by the child in each household . [paras 47 and 48] [emphasis added] [ 8 ] In SJF v DMK , 2018 ABQB 559 , Graesser J. considered (and rejected) a request to treat one parent’s income as effectively including that of his or her new partner: No case was cited to me where a new spouse’s gross income had simply been added to the payor’s income, and I reject that as being wholly inappropriate .

The payor and children from the earlier relationship get no benefit from deductions made from the new spouse’s income, or the new spouse’s expenses. That suggestion offends the well-accepted principle that new spouses do not take on financial responsibilities for step-children, other than in loco parentis situations. Counsel in this case, however, reminded me that in Contino v Leonelli-Contino , 2005 SCC 63 , the Supreme Court cautioned about a “formulaic approach” to child support in shared parenting arrangements. Cases following Contino are inconsistent in their approach. Counsel for DMK referred me to an

article by Elliot S. Birnboim and Daniella Murynka,

Section 9 and Second Families , 2015

138. That

article is an interesting analysis of the treatment of child support in shared parenting situations and emphasizes the inconsistenciesthat exist. … Limited evidence was provided by both parties about the conditions, means, needs, and circumstances of the two households. Iknow nothing about DMK’s spouse, other than her income and that only she, DMK and the child reside in DMK’s residence. I donot know what her take-home pay is; I do not know what her personal expenses are, nor do I know what she can or doescontribute to the household.

I know that the child skis and wakeboards with his father and stepmother in BC during the summer. I know that SJF is not currently partnered. She was in a relationship that ended sometime in 2014. She supports the child’s interests inmountain biking and hockey.

A simple comparison of the gross household incomes shows that but for 2015 and 2016, SJF’s income exceeded DMK’s grosshousehold income: in 2013 by nearly $90,000; in 2014 by over $50,000; and in 2017 by more than $50,000. [There is no evidence that offset child support would cause any hardship to SJF, or prevent her from enjoying as good or betterstandard of living in her home than that enjoyed in DMK’s home. I conclude that to the extent I have been able to consider

section 9(

c) on the facts here that there is nothing in the conditions,means, needs or circumstances of SJF’s home that suggests that she should pay less than the offset amount. … [paras 53-55 and64-68] [emphasis added] [9] Per Julien D. Payne and Marilyn A. Payne in Child Support Guidelines in Canada, 2020 (Irwin Law Inc): Although

section 9 [support] should not be perceived as spousal support nor as a means of equalizing the respective household incomes,the court must ensure that there is an adequate amount of resources to meet the children’s needs in both households. Theinterests of the children will not be served if the amount of child support is barely enough to meet their basic needs in the lowerincome home, while they enjoy a luxurious lifestyle in the other home. … Whatever may result from the application of sections 9(a)and (

b) of the Guidelines, the comparative means and needs of the parties and their children may compel another result. Having regardto the language of

section 9(c) …, the court has, in the final analysis, the discretion to do what seems appropriate in all thecircumstances. [p 326] [footnotes omitted] [emphasis added] [10] Per Professor Rollie Thompson in The TLC of Shared Parenting: Time, Language and Cash (27th Annual Institute ofFamily Law, County of Carleton Law Association, April 13-14, 2018) -- 32 CFLQ 315 at 343-344): If there is any strong message coming out of Contino, it is that a child in a shared custody arrangement should not experiencesignificant differences in his or her standard of living when moving back and forth between the two parental households.

Thereare good policy reasons for this approach, although not elaborated in Contino. Implicit in a true shared custody arrangement is a greatersharing of parental resources in the interests of the child, with a greater commitment to equality than in other post-separationarrangements.

Then there is a second, more pragmatic reason: a significant differential in household living standards can destabilisethe shared arrangement, encouraging the child to shift towards the home with the higher standard. … once the support issues are squarely placed before the court, this ought to be the guiding principle in shared custody cases. [emphasisadded] [footnotes omitted] C.

Positions [11] The father made these core submissions on s. 9: The mother deposes that her partner pays all of the [family] expenses. [I] understand this to mean that she has no accommodation orfood costs for the children [when living with her]. She does not provide any further or detailed information in regard to her expenses. She provides the notices of assessment for her partner for 2019 and 2020 indicating that he earns about $175,000 per year.

The motherclaims her partner’s income will decrease but offers no evidence in support of this assertion. … the conditions, means, needs and circumstances of the mother and the children in the mother’s home far exceed [my] own. … themother lives in a large home and drives a new and expensive vehicle.

The mother has described her vehicle as a GMC Yukon, perhapsvalued at $80,000 or more when new. … the children have access to various recreational vehicles at the mother’s home, includingquads and other expensive equipment. [I am] concerned that someday the children may prefer the affluence of the mother’s hometo the modesty of [my] own. … [my] budget demonstrates that [I have] been living on credit for some time. Credit is not income. The mother describes all theexpenses of her household but also says that her partner pays for everything. Both parents have a responsibility to support their childrenfinancially.

If the mother chooses to fulfill that obligation with the contribution of her partner rather than to work, then that is herprerogative. Given these facts, … there should be no

section 9 child support, OR it should flow from her to [me]. [emphasis added] [12] The father’s income in 2019 was $87,800. (For 2020 and 2021 (to date), my recollection is that I have not yet received thefollow-up information from the father required in the last judgment. If that is off-target, I invite his counsel to direct me to thatinformation.) [13] He submitted further: … if [my] current income were $60,000 per year, [my] net, after tax income would be $45,558. If [my] current income were $80,000,

the net would be $58,073. The mother’s new partner’s income of $175,000 would net at $111,372 per year. The difference in monthly net household income would therefore have the mother’s home higher by $5,484 per month (with [me] at $60,000) or by $4,442 (with [me] at $80,000).

The difference is significant by either measure and could create the undesirable effect of the children viewing the mother’s home preferentially based on the higher level of affluence in her home . … Any award of child support flowing from [me] to the mother would increase the already significant disparity in household incomes in favour of the mother and would thereby thwart the guiding principle of the case law since Contino to avoid significant differences in household incomes in shared parenting scenarios. … consideration is to be given to the household income and standards of living that might inadvertently encourage the children to shift to the higher standard home . … this Court [should find that I] can, in law, be liberated from paying child support to the mother on the unique facts of this case. [emphasis added] [ 14 ] The mother argued (in part): It [would be] an error of law to assume based solely on [the mother’s partner’s] income that [she and he] provide a standard of living which far exceeds [the father’s] .

The Court does not have evidence with respect to [the new partner’s] personal expenses, debt and contributions to the home. Core to [the father’s] argument is that the inclusion of [the new partner’s] income is necessary to ensure a comparable standard of living as between the two homes . Before considering the role of the standard of living within the

section 9 analysis, it should be noted that for one-half of the year , [the father] is a household of one adult [i.e. himself]. In contrast, [the mother’s] minimum household is two adults and one child [i.e. the mother, her new partner, and their child]. Contino demands a contextual approach which considers all three factors [i.e. 9(a), (

b) and (c)] enunciated by Parliament when conducting a

section 9 analysis …. [Per Graesser J. in SJF [cited above], including the new spouse’s income [as part of] the payor’s [here, the mother’s] income for child support [i.e. under s. 9 two-way payments] “offends the well-accepted principle that new spouses do not take on financial responsibilities for step-children, other than in loco parentis situations …” Implicit in this conclusion is there are reasonable limits to the financial obligation of a step-parent insofar as their contribution to equalizing standards of living. [Per BPE v AE , 2016 BCCA 335 ], if the new partner’s income is to be [considered], it is under the rubric of the “conditions, means, needs and other circumstances of each spouse” … and must remain limited in scope …: Varying support to account for third and fourth incomes [i.e. of one or both new partners, as applicable], under 9(

c) as a matter of course would degrade the certainty and predictability of the legislative scheme and risk returning us to the ad hoc unpredictability of the old child support regime. It tends to increase the volatility of child support obligations. By contrast, giving weight to total household incomes for a more limited purpose – that is, to assess whether basic needs can be met and whether disparate standards of living between households can be avoided [-- maintains the flexibility of the s. 9 scheme while drawing predictable boundaries around the 9(

c) enquiry. [emphasis added] The automatic inclusion of [the new partner’s] income offers a simplistic and problematic “fix” to a complex and nuanced issue . First, doing so without also considering [the new partner’s] personal debts and financial obligations [reflects] a “common sense” assumption that a higher household income automatically results in a higher standard of living . Second, the singular prioritization on the standards of living, different as they may be, minimizes the significance of the additional objectives of the Guidelines .

Arguably the inclusion of [the new partner’s] income serves to increase conflict and tension and result in more subjective child support orders, results that fundamentally run afoul of the [ Guideline ] objectives. [The father] has not advanced, nor is there evidence, that paying the set-off amount will result in an inability to meet the needs of the children . The budgets provided to the Court were limited to the parties’ costs associated with the children being in their [respective] care.

The Court cannot reasonably assess the household standards [of living] based solely on [the mother’s] budget and [her new partner’s] income. To do so is an example of the “common sense” assumptions that lead to unjust results. [emphasis added] [ 15 ] The mother also argued that, for July to December 2019, her new partner’s income should not be considered, since (on her view) they did not become Adult Interdependent Partners until the birth of their son (in early 2020).

Here she cites Massier v Hoogenboom , 2019 ABPC 177 at para 45 . [ 16 ] She acknowledges that he was a high-income earner in 2020 (approximately $176,000), but notes that their expenses increased early in the year (with the arrival of their son) and also that she “ continued to bear a significant debt burden resulting from [the father’s] failure to provide child support between January 1, 2018 and June 15, 2019. [ 17 ] As “other circumstances” (per ss. 9(c), she notes being on maternity leave and attending post-secondary courses (for an Education degree) while her new partner worked out of town.

She says there is “ no evidence before the Court with respect to the financial expectations and arrangements as between [her and him] during their first full year of cohabitation and that it is “ unreasonable to assume that they expected he would be solely financially responsible for the children.

Accordingly, in the absence of complete financial disclosure and assessment of circumstances, [the father] should not be discharged of his financial obligations to the children based solely on [her new partner’s] income.” [ 18 ] Finally, she emphasizes that her new partner’s income decreased effective July 15, 2021, to approximately $4,200 bi- monthly (in light of not being sent on out-of-town assignments or at least as many as before). [ 19 ] She contrasts this to an asserted biweekly income for the father of approximately $3,400 (based on his 2019 income of $87,800): “Applying a combined household income analysis as between the parties finds the [households] to be comparable, with a 45/55 per cent split [father at 45 per cent]. [The father] should be required to pay the full set-off amount of child support given the comparable combined household income and [the mother’s] increased costs due to the additional adult and child in [their] home

year-round .” D.

Analysis [ 20 ] Here are the key factors here: • the father’s income is approximately $88,000, the mother’s income is zero, and the new partner’s income is (or was) approximately $176,000; • the new partner has borne all of the expenses associated with the shared-parented children when they live with the mother (half the time); • under the straight set-off approach (per 9(a)), the father would be making payments to the mother, with none owing to him in return (i.e. with her having no income); • the father’s position (no s. 9 support payable by him) effectively makes the mother’s new partner responsible for child-related expenses for children to whom the new partner has no legal support obligation; • such a “matter of course” off-load is not supported by the plain wording of ss 9(

c) or as interpreted by cases such as SJF v DMK and BPE v AE (both cited above), with which I concur on this aspect. • to the extent the father anchors his position in differential standards of living, he goes off-track in effectively equating differential household income to differential living standards. As the mother notes, the record is relatively sparse or at least incomplete on the standards of living in each home.

The mother disclosed the scale of her new partner’s income and acknowledged that he has covered her living expenses, plus those of their child, as well as those of the shared-parented children when they live with them. Beyond that, the specifics of his contributions – what specific kinds of expenses covered? How much spent for each category of expense? Funded entirely out of his income? If not, from what other source(s)?

What expenses incurred by him for purely personal or at least non-family purposes (if any)? – are largely unknown; • here the onus was effectively on the father i.e. to show (if actually the case) that the new partner’s higher income has translated, on the ground , into a higher standard of living for the children.

Per cases such as Wetsch v Kuski , 2017 SKCA 77 (para 165 ) and Gottinger v Runge (cited above) (para 53), whose analysis I find would translate into an Alberta context, a person in the father’s position can oblige a person in the new partner’s position (whether directly or via the other parent, here the mother) to provide evidence detailing “contributions to, and draws upon, the household” in question.

To advance his argument, the father should have requested such particulars and, if none were provided, sought an order requiring it to be provided; • as it was, the father was left with only indirect clues on differential living standards, which I find inadequate to prove any significant differential here: o the record shows that the new partner bought his home for approximately $660,000 in May 2019, albeit apparently with an associated mortgage loan of approximately $641,000 i.e. only a relative sliver of equity; o the record is effectively silent on any other details of that property; o the father emphasized the “collection of trailers” nature of his home and its apparent far-less-than-$660,000 value (property was to be appraised earlier this fall; mother suggested the home parcel (11.69 acres) was worth between $275,000 and $325,000), but the evidence is insufficient for me to conclude that the differences between the two homes, or the two properties on which the homes are located, necessarily translate into an inferior standard of living at the father’s home; o on that subject, the father’s own evidence was that the children are attached to the home property (where he lives) and do not want him to sell it; o vehicle-wise, the father pointed to the mother using a GMC Yukon “possibly worth $80,000 new”, with no evidence (even an estimate) of its current value, its condition or how much is owned (versus financed).

The mother’s most current evidence is that she and her partner are planning to sell that vehicle to be free of the associated payments.

Related is the father’s handover of a 2011 Odyssey van, formerly used by the mother to drive the children around, and now restored to her; o the father referred to recreational equipment (“quads”) at the mother’s home; on the other hand, he described various activities he pursues with the children at or from his home (“boating, fishing, kayaking, tubing, skiing, jump park, scootering, and plenty of active, outdoor activities together as a family”); o the record is largely silent on travel, dining out, dinners in, home entertainment systems, personal electronics, books, allowances, bedroom furniture, bicycles, sports equipment, music lessons, and other things that might signal differential standards of living between the two homes; and o the record indicated that the children’s clothing may have been funded largely or at least more than half by the father i.e. no sign that the children were being spoiled or otherwise “other-clothed” at the mother’s home; • as noted by the mother, some differential in income (all aside from in living standards) is explained or reconciled by the larger “base personnel” in her family i.e. her, her partner, and their child, versus the father’s “base” of himself (see Campbell v Campbell , 2010 MBQB 107 (Johnston J.) (paras 21-27 ); • in any case, the new partner’s income has materially diminished, moving into a zone (as described by the mother above) where the

ostensible sizeable difference earlier has, if not eclipsed, been sharply reduced; and • for completeness’ sake, I do not see that the new partner’s “AIP or not” status has any bearing here: his contributions are what they are and they were made when they were made. Whether he was an AIP at the time or not is not relevant to the analysis here. E. Conclusion [ 21 ] For these reasons, I do not perceive a significantly different standard of living in the two households and, accordingly, do not see a convincing reason, under the ss 9(

c) analysis, to depart from the straight set-off outcomes for support for the years in question per ss 9(a). [ 22 ] I have already ruled that no move off ss 9(

a) support was warranted under ss 9(b). [ 23 ] If the parties require further directions on the father’s income in 2020 or 2021 or otherwise to set the applicable support in light of this decision, they can contact me via my assistant (Stacy Adams). [ 24 ] If the parties are unable to agree on costs of this latest chapter, I invite their submissions (maximum 1.5-page letter) by December 17, 2021. [ 25 ] I thank both counsel for their helpful submissions. Heard by way of written submissions received the 10 th day of September, 2021. Dated at Edmonton, Alberta this 3 rd day of December, 2021. M. J. Lema J.C.Q.B.A.

Appearances: Laura H. Bruyer, Bruyer & Mackay LLP for the Applicant/Cross-Respondent Barbara L. Acton, Acton Law Office for the Respondent/Cross-Applicant