Manegre v Manegre, 2021 ABQB 970

Court of Queen’s Bench of Alberta Citation: Manegre v Manegre, 2021 ABQB 970 Date: 20211207 Docket: 4803 168003 Registry: Edmonton Between: Pamela Marie Manegre Applicant - and - Rene David Manegre Respondent Corrected judgment: A corrigendum was issued on December 7, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice C.L.

Arcand-Kootenay _______________________________________________________ [ 1 ] This matter came before me as a special hearing. [ 2 ] I can confirm I reviewed the following documents that are on the court file and were filed for today’s hearing: 1. Family Application and Affidavit filed by Pamela Marie Manegre (the “Applicant”) on June 9, 2021; Update Affidavit filed on July 28, 2021; Reply Affidavit filed on July 6, 2021; Concise Letter filed on November 23, 2021 by counsel for the Ms. Manegre; Rene Manegre Transcript from November 12, 2021; and financial documents. 2.

Cross Application and Response/Affidavit in Support of Cross Application filed on June 23, 2021 by Rene David Manegre (the “Respondent”); Concise Letter filed on August 5, 2021 by counsel for Mr. Manegre; Pamela Manegre Transcript from November 12, 2021; and financial documents

[ 3 ] I have also reviewed the Divorce Act , the Federal Child Support Advisory Guidelines , Statutory Orders Regulation ( SOR)/97-175 , and the Spousal Support Advisory Guidelines . The Child Support Guidelines endeavor to set a fair amount of child support, so that both parents can fulfill their financial responsibilities to this child in the wake of their separation. [ 4 ] I heard further submissions from counsel for both the Applicant and the Respondent on November 23, 2021.

Introduction [ 5 ] Parents disagree on the adjustments necessary after two of three children (aged 16 years, and 12 years as at 2018) in a shared parenting arrangement decided to live with the mother only and have limited contact with the father. She seeks retroactive and ongoing child support in line with that change. The father wants to continue with the shared parenting regime for the youngest child, and states parental alienation is the reason for the change.

He would like family reunification therapy, and the mother disagrees based on the child’s current age, he is now 15 years old. [ 6 ] The mother and father are also requesting a review of ongoing spousal support pursuant to the review directed by Justice Browne in the October 24, 2017 Divorce Judgment and Corollary Relief Order. Issues [ 7 ] The issues before me are as follows:

(1) Retroactive and ongoing child support;

(2) Variation and or termination of spousal support;

(3) Parenting; and

(4) Costs. Facts [ 8 ] I accept the following evidence and will base my decision on this evidence. I am satisfied the following is relevant to my determination of this issue. 1. The Applicant and Respondent both live in the Province of Alberta. 2. The Applicant and Respondent have three children: Faith Manegre , February 3, 2002 (19 years); Carter Manegre , February 3, 2002 (19 years); and Cole Manegre August 14, 2006 (15 years).

Cole Manegre is the only child of the marriage at present, Faith and Carter ceased to be children of the marriage in July, 2020 upon turning 18 years of age and choosing to not attend post-secondary schooling. Both Carter and Cole have lived with the Applicant on a daily basis since approximately October 2018, despite a Divorce Judgment and Corollary Relief Order granted on October 24, 2017 (hereinafter “DJCRO”) that granted shared parenting. FMM has lived with both the Applicant and Respondent since October 2017. 3. The Applicant and Respondent commenced co-habiting in 1992 in Saskatchewan.

At that time the Applicant was a graduate of a one-year course as a Personal Development Worker, the designation later renamed to Rehabilitation Services Worker. The Applicant worked full time as a therapeutic assistant for ten years at the Lutheran Sunset Home in Saskatoon. 4. The Applicant and Respondent were married on June 15, 1996. 5. The Respondent attended university and worked part time until he commenced employment with the RCMP in approximately June, 2003. At that time, the parties moved to Sherwood Park, Alberta where the Respondent was stationed as a Member.

The Applicant stayed out of the paid workforce when the parties relocated. 6. In October 2012, the Applicant started a cleaning and companionship business called Mom’s Helping Hands Inc . now called Modern Home Services Inc. At that time, the Applicant had been out of the work force for a period of nine years. During those nine years, she adopted the role of the stay at home mom. 7. The Applicant and Respondent separated on January 2, 2013. 8. They have had an acrimonious relationship since that date. 9. Justice Browne granted a DJCRO on October 24, 2017.

The Respondents Income at that time was $100,094, and the Applicants was set at $40,000. The terms of the DJCRO granted shared parenting between the parties, with a set off for child support; and with declining spousal support to the Applicant with a review date of November 2020. No reasons were given by Justice Browne with respect to the review of spousal support. Pursuant to paragraph 3 of the DJCRO: “Exchanges of the children shall be such that the party who is to commence access shall pick the children up at the residence of the other party”.

When the DJCRO was granted, the parties had been together for 25 years with the Respondent being employed with the RCMP for 14 years. 10. On July 21, 2018 the Respondent married Hilary Manegre. 11. On or about September 2018, Carter and Cole chose to not attend at their father’s home for parenting time. 12. In December 2019 to March 2020, the parties attended mediation with a parenting and family coach. The children met with a male counsellor during this time as well. The engagement with these professionals was to address the issue of the lack of contact by Carter and Cole with their father.

This issue was not resolved at that time. 13. At the beginning of 2020, the Applicant was able to secure temporary part time work at St. Michael’s Care Centre (hereinafter “Care

Centre”) as a therapeutic assistant. Based on the evidence of the Applicant, this is the area of work that she was trained and employed in when the parties began cohabiting in 1992. Towards the end of 2020 she was hired on a permanent part time basis at the Care Centre. 14. The Applicant has the following investments and or RRSP’s based on her own evidence: a. CIBC Investment totaling $9,859.41; b. Financial Horizons Group RRSP totaling $33,367.85 at June 6, 2021; c. World Financial Group RRSP totaling $203,428.86 at June 7, 2021; d. World Financial Group LIRA totaling $35,367.46 at June 7, 2021; 15.

The Applicant also received $30,000 as an Inheritance from her deceased mother’s estate, payable as $15,000 in 2018 and $15,000 in 2020. 16. Based on the evidence of the Applicant and Respondent, the guideline incomes of the parties are as follows for the years 2018 to 2020. I have taken the Applicants guideline income from her evidence on paragraph 28 of her Affidavit sworn on June 9, 2021: Year Fathers GLI Mothers GLI Based on NOA Based on T1 and Corp 2018 $117,122 $37,201 2019 $114,944 $28,855 2020 $106,695 $50,086 2021 $112,435 $50,000 17.

The Respondent’s guideline income for 2021 is set at $112,435 based on the evidence that was filed in support of this application. Specifically, Exhibit “A” of the Applicant’s Update Affidavit filed on November 9, 2021. On page 9 of Exhibit “A” it indicates at April 1, 2021, Step 2 restructure annual rate of pay is $112,150 and at April 1, 2022, Step 1 restructure annual rate of pay is $112,435 for a Corporal. I have used the April 1, 2022 annual rate of pay. 18. The Respondent’s income has remained in the same range every year since the DJCRO was granted. 19.

The Applicant’s income has started to increase in the last two years, and held steady at or near the $40,000 income imputed in the Order, the year after the Order was granted. The Applicant has provided a filed Disclosure Statement that contains her financial information including: T1 Generals; Notice of Assessments; Pay Stubs; and, Financial Statements for her business. This list is not exhaustive. 20. Both parties acknowledge that they have not taken steps prior to these applications to address child support based on their actual guideline incomes. 21.

The twins, Faith and Carter, are now 19 years of age and both employed at Sobeys. Faith works full time and Carter works part time. Both Faith and Carter have their own vehicles. 22. Cole has recently begun having contact with his father. Analysis of Facts and Law [ 9 ] Alberta Rules of Court,

Part 12 and PN2 Practice Note No. 2 Evidence the Court may consider 34. Subject to paragraph 37, the Court will not consider evidence that is not contained in an Affidavit or statement. 35. The Court will not consider evidence contained in additional affidavits or statements that are not permitted by this Practice Note, unless the party has obtained leave of the Court (see paragraph 56). … 38.

The Applicant’s and Respondents evidence, whether contained in affidavits or statements, filed for an application or cross-application in Regular Family Chambers that is adjourned to Special Family Chambers, shall serve as the Applicant’s and Respondent’s primary evidence for Special Family Chambers. [ 10 ] Divorce Act (R.S.C., 1985, c.3 (2nd Supp .)) Variation Order

17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

a) A support order or any provision of one, on application by either or both former spouses;

b) A parenting order or any provision of one, on application by (i)either or both former spouses, or (ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or

c) a contact order or any provision of one, on application by a person to whom the order relates Factors for child support order …

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. Factors for spousal support order …

(4.1) Before the court makes a variation in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. Factors for parenting order or contact order …

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9). [ 11 ] As the DJCRO provided for a review of spousal support, I need not find a material change in circumstances to proceed with that part of the application. [ 12 ] Regardless, for the purposes of parenting, child support, spousal support I am satisfied that there has been a material change in circumstances since the granting of the DJCRO: both parties have had a change in income (1) the Applicant has secured permanent employment with the Care Centre and (2) the Respondent’s income with the RCMP is going to increase; the two older children are no longer children of the marriage; and the youngest child, Cole, has been residing primarily with his mother since September 2018 but has recently begun having contact with his father.

Counsel for the applicant relies on SAM v MPM , 2020 ABQB 462 at para 4 to support that a residential shift is a material change in circumstances. Parenting Divorce Act (R.S.C., 1985, c.3 (2nd Supp .)) Best interests of the child 16(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child;

(

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k)any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child [ 13 ] The child of the marriage, Cole, is now 15 years of age.

I noted above that paragraph 3 of the DJCRO stated: “Exchanges of the children shall be such that the party who is to commence access shall pick the children up at the residence of the other party”. The Respondent was responsible to pick the children up for his parenting time. There is no evidence before me as to why the Respondent did not pick the children up for his parenting time. He must assume responsibility for not doing what he was ordered to do. [ 14 ] Cole has resided primarily with his mother since approximately September 2018.

Cole is thinking with his feet and has chosen to live day to day with his mother. I do not know why he has made this choice, although the Respondent’s belief is the Applicant has alienated him from his father. I do not know what is in Cole’s mind, as I do not have that evidence before me. I do not know what the child’s views and preferences are, and I will not make assumptions. [ 15 ] It is in a child’s best interest to have maximum contact with each parent. I find it is in Cole’s best interest to have maximum contact with his father.

Yes, Cole is 15 but he is not yet an adult and able to make sound decisions for himself. It is my role to make the decision for him regarding parenting time as part of this application. A father is a role model for his son, and this father should be a role model for his son. I have not been provided with any evidence to prove that the Respondent would cause harm to his son. Further, I find that the father is able and willing to meet the child’s needs, and the history of care was intended to be a shared parenting regime.

I intend to return to that regime. [ 16 ] I am going to continue the shared parenting regime, with the father having the child 12 days per month. It will continue to be the Respondent’s responsibility to pick him up for his parenting time. Child Support [ 17 ] I am guided by the Federal Child Support Guidelines in my consideration on the issue of child support. I must consider s. 1(

a) of the Guidelines which states: To establish a fair standard of support for children that ensures that they benefit from the financial means of both spouses after separation. I must also consider s.3(1): Presumptive Rule 3(1) Unless otherwise provided under these Guidelines, the amount of a child support order 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; and

b) The amount, if any, determined under

section 7. (3) “Applicable Table” The applicable table is

a) if the spouse against whom an order is sought resides in Canada, (i)the table for the province in which that spouse habitually resides at the time the application for the child support order or for a variation order in respect of the child support is made.

Extraordinary Expenses 7(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (b)That portion of the medical and dental insurance premiums attributable to the child; …

(e)Extraordinary expenses for extracurricular activities. Sharing of expense:

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Information to be specified in order: 13 A child support order must include the following information:

a) The name and birth date of each child to whom the order relates;

b) The income of any spouse whose income is used to determine the amount of the child support order;

c) The amount determined under paragraph 3(1)(

a) for the number of children to whom the order relates;

d) The amount determined under paragraph 3(2)(

b) for a child the age of majority or over;

e) The particulars of any expense described in subsection 7(1), the child to whom the expense relates, and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense, and

f) The date on which the lump sum or first payment is payable and the day of the month or other time period on which all subsequent payments are to be made. Determination of Annual Income 15(1) Subject to section (2), a spouse’s annual income is determined by the Court in accordance with sections 16 to 20. Calculation of Annual Income 16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General Form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. Imputing Income 19(1) 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; b) … c) …

d) It appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

e) The spouse’s property is not reasonably utilized to generate income;

f) The spouse has failed to provide income information when under a legal obligation to do so; g) … h) … i) …. Adverse inference 23 Where the court proceeds to a hearing on the basis of an application under paragraph 22(1)(a), the court may draw an adverse inference against the spouse who failed to comply and impute income to that spouse in such amount as it considers appropriate.

[ 18 ] The Applicant and Respondent both live in the Province of Alberta. Thus, the applicable table is for the Province of Alberta. [ 19 ] Pursuant to the terms of the DJCRO granted on October 24, 2017, the Applicant and Respondent shared custody of the three children of the marriage up to and including August 2018. Commencing September 2018 up to and including June 2020 two of the children, Carter and Cole, lived day to day with the mother despite the terms of the October 2017 Order. From July 2020 to July 2021 Cole, the only child of the marriage at this time, lived day to day with the Applicant.

The other two children, Faith and Carter, were now adults and not attending post-secondary education. [ 20 ] The Applicant relied on Brear v Brear , 2019 ABCA 419 at para 66 , wherein it was found: “ that applications to retroactively vary child support can be brought after the children are no longer children of the marriage ”. The support amount will only be payable for the period of time that the child was a “child of the marriage”. [ 21 ] I am satisfied that a change in circumstances has occurred since the making of the October 2017 DJCRO, as the children had a residence shift.

Two of the three children were living with the Applicant full time. [ 22 ] The DJCRO provided a set off for child support based on the shared parenting regime.

The set off amount was $1,109 per month payable to the Applicant by the Respondent. [ 23 ] The Respondent has made all payments pursuant to the DJCRO. [ 24 ] The Guideline incomes of the Respondent and Applicant, based on the evidence before me are as follows: Respondent Applicant 2018 $117,122 $37,201 2019 $114,944 $28,855 2020 $106,695 $50,086 2021 $112,435 $50,000 [ 25 ] The Respondent’s guideline income for 2021 is set at $112,435 based on the evidence that was filed in support of this application, as noted above. [ 26 ] I find the Applicant has met the four-part test in Michel v Graydon in regards to my consideration of retroactive child support as follows: 1.

Whether there was a reasonable excuse for why support was not sought earlier: The mother was unaware of the specific changes in the father’s income as he declined to disclose his income. Pursuant to paragraph 18 of the DJCRO the parties were to “provide the other with a complete copy of his or her income tax return and notice of assessments issued to him or her by the Canada Customs and Revenue Agency on an annual basis on or before June 30th of each year”.

If this information had been forthcoming, the parties could have had the child support recalculated by the Alberta Child Support Recalculation Program pursuant to paragraph 19 of the DJCRO, without the necessity to return to court. 2. Conduct of the payor and whether he engaged in “blameworthy conduct”: The Father was aware of his support obligations and his obligations pursuant to the DJCRO to provide complete and accurate disclosure. He did not provide complete and accurate disclosure.

I find, based on the evidence before me, the Father did provide disclosure at some point but the exact dates that it was provided are unknown. I find disclosure was only provided once these applications were commenced. In paragraph 42 of the Respondent’s Affidavit filed June 23, 2021 he deposes: “I have provided all disclosure I believe is required of me by the docket and procedural order.” The docket appearance that he is referencing was on December 9th, 2020, and the procedural order was granted on March 15th, 2021.

Thus, I find that the financial information provided by the Respondent was only provided after December 9th, 2020. 3. Circumstances of the children: The children did not receive the same benefits and support they would have received had they been adequately supported by both parents. A loss of benefits must be presumed where the payor parent has failed to pay the amount of support required under the Guidelines over a prolonged period of time. Goulding v Keck , 2014 ABCA 138 at para 52 . 4. Hardship: The Father has not provided any evidence to show that to pay those amounts would be a hardship for him.

Indeed, the Father has indicated that to pay child support is, in fact, not a hardship. [ 27 ] Based on the above, I grant the Applicant’s application for retroactive child support. I find that from September 2018 up to and including June 2020 two of the children, Carter and Cole, lived day to day with the mother despite the terms of the October 2017 DJCRO. From July 2020 to July 2021 there was only one child of the marriage, Carter, as the other two children (Faith and Carter) were now adults and not attending post-secondary education.

Cole, the only child of the marriage at this time, lives day to day with the Applicant. [ 28 ] My calculations based on the evidence before me, for retroactive child support are as follows: [ 29 ] From January 2018 to August 2018, the parties had shared custody of the children. The Respondents income is set at $117,122 for 2018 and the Applicant’s income is set at $37,201 for 2018. The net monthly child support payable by the Respondent is $1,475.00. The Respondent paid $9460 in child support, but should have paid $11,800. Thus, a shortfall of $2340.

[ 30 ] With respect to “setting” the Applicant’s guideline income, I am guided by the decision of the Court of Appeal in Cunningham v Seveny , 2017 ABCA 4 , in determining where a parent is self employed that certain business deductions are reasonable for the purposes of calculating child support.

At para 25: To establish a parent’s income for Guideline purposes, income declared at Line 150 of the disclosing party’s annual tax return may not accurately reflect the value of personal benefits that parent receives from self-employment, a partnership or a corporation controlled by the parent, or over which the parent has more than a 1% interest.

Common examples include personal use of corporate vehicles, computers, cellphones, personal benefits associated with travel, entertainment and promotional source, where the source deducted expenses for income tax purposes that may have resulted in a personal benefit to the parent and, therefore, may be relevant in determining child support obligations, must disclose those deductions.

In addition, if the parent takes the position that those deductions did not result in the parent obtaining a personal benefit, an explanation is required for why those expense deductions (or a part of them) should not be attributed to the parent’s income for child support expenses. [ 31 ] I find that the T1 General of the Applicant has not disclosed her benefits from her personal business, Modern Home Services .

I have applied the principle in Cunningham and have added the personal benefit amount provided by the Applicant in her Affidavit filed on June 9th, 2021 to the Net Income of Modern Home Services disclosed in the Financial Statements to arrive at her annual guideline income. [ 32 ] From September 2018 to December 2018, the parties had shared custody of one child, Faith. The other two children, Carter and Cole lived day to day with the Applicant despite the DJCRO. The Respondents income is set at $117,122 for 2018 and the Applicant’s income is set at $37,201 for 2018.

The net monthly child support payable by the Respondent is $1,918.00. The Respondent paid $5396 in child support, but should have paid $7672. Thus, a shortfall of $2276. [ 33 ] From January 2019 to December 2019, the parties had shared custody of one child, Faith. The other two children, Carter and Cole lived day to day with the Applicant despite the DJCRO. The Respondents income is set at $114,944 for 2019 and the Applicant’s income is set at $28,855 for 2019. The net monthly child support payable by the Respondent is $1,933.00. The Respondent paid $16,674 in child support, but should have paid $23,196.

Thus, a shortfall of $6522. [ 34 ] From January 2020 to June 2020, the parties had shared custody of one child, Faith. The other two children, Carter and Cole lived day to day with the Applicant despite the DJCRO. The Respondents income is set at $106,695 for 2020 and the Applicant’s income is set at $50,086 for 2020. The net monthly child support payable by the Respondent is $1,624.00. The Respondent paid $6850 in child support, but should have paid $9744. Thus, a shortfall of $2894. [ 35 ] From July 2020 to December 2020, there was only one child of the marriage, Cole.

Cole lived day to day with the Applicant despite the DJCRO. The Respondents income is set at $106,695 for 2020 and the Applicant’s income is set at $50,086 for 2020. The net monthly child support payable by the Respondent is $945. The Respondent paid $4845 in child support, but should have paid $5670. Thus, a shortfall of $825. [ 36 ] From January 2021 to July 2021, there was only one child of the marriage, Cole. Cole lived day to day with the Applicant despite the DJCRO. The Respondents income is set at $112,435 for 2021 and the Applicant’s income is set at $50,000 for 2021.

The net monthly child support payable by the Respondent is $943. The Respondent paid $4900 in child support, but should have paid $6601. Thus, a shortfall of $1701. [ 37 ] Based on the foregoing, the total retroactive child support owing by the Respondent to the Applicant is $16,588. [ 38 ] As Cole continues to live with the Applicant on a day to day basis, child support shall continue to be payable by the Respondent to the Applicant. As Cole has recently begun to spend time with the Respondent, I am going to be awarding the Respondent parenting time for 12 days of each and every month.

The parties appeared to proceed on the basis that a set off was appropriate, based on the terms of the DJCRO. As the parties did not make submissions that something other than a set off was appropriate and they did not give me the necessary evidence to make such a determination, I am awarding the set off. [ 39 ] I set the Respondents income at $112,435. The Respondent shall pay a set off amount of $583.00 per month for child support commencing August 1st, 2021. Retroactive child support for the period August 1st, 2021 to November 1st, 2021 is set at $2332.00.

Ongoing child support for Cole will be $583.00 per month. [ 40 ] If I am wrong in the Respondent’s actual income for 2021, the parties are still going to be required to share financial information every year, and will continue to have the Alberta Child Support Recalculation Program available to them. Spousal Support [ 41 ] Although the reason for the review was not specified in the DJCRO of Justice Browne, based on the submissions of the parties the review is to assess the progress the Applicant has made towards self-sufficiency.

As such, I am considering whether the Applicant has an ongoing entitlement to spousal support on either a compensatory or non-compensatory basis. In making my determination I am mindful of the 4 objectives of spousal support set out in s.15.2(6) of the Divorce Act and have paid careful attention to the Applicant’s progress towards self-sufficiency.

Spousal support order 15.2(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order it thinks fit and just. Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. … Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 42 ] I find the parties co-habited for a period of 22 years. The Applicant was the breadwinner while the family resided in Saskatchewan for a period of 11 years. When the family relocated to Alberta, the Applicant stayed at home for 9 years and only re- entered the work force 9 years ago. The Respondent has been employed with the RCMP for 18 years.

When the marriage broke down in January 2013, the Applicant was disadvantaged as she was only starting her home-based business and could not forecast whether it would succeed while the Respondent continued on in his job with the RCMP. The Applicant may not have known, at that time, whether she would be able to resume the type of employment she was trained for: a therapeutic assistant. The Applicant still requires spousal support. I find she is entitled to compensatory support pursuant to the four objectives of spousal support in s.15.2(6) (

a) of the Divorce Act based on the economic disadvantage to the Applicant arising from the marriage breakdown. It has only been four years since the DJCRO was granted, but I find the Applicant has started moving towards self-sufficiency. [ 43 ] I have reviewed the information before me and I am satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order in the DJCRO in October, 2017. I am also satisfied that the Applicant has made strides towards self-sufficiency based on the following:

a) At the time the original DJCRO was granted, in October 2017, the Applicant’s income was imputed to be $40,000. She is now making $50,000 four years later. But, she recently had surgery for a hernia and is currently on disability. Her date of return to work is uncertain.

b) The Respondents income has stayed the same, but will be increasing in the near future, however I have used his “new” imputed income in my calculations.

c) The Applicant was employed in early 2020 in the same field as she was previously trained prior to the marriage. She also has her own company Modern Home Services Inc . The Applicant’s income from both her employment at the Care Center and her business for the 2020 and 2021 calendar years is approximately $50,000.

d) The Applicant has admitted to gambling in the Transcript of Oral Questioning on November 12, 2021. Given the amount of money that she has spent on gambling each month in her filed materials, I am concerned how much money is getting into the hands and for the benefit of the child and going towards the Applicants monthly expenses.

e) The Applicant lives in the matrimonial home pursuant to an earlier decision of this Court.

f) The Applicant has other savings in the form of RRSP’s as part of the division of matrimonial assets. She also received a cash inheritance from her late Mother’s Estate.

g) The Applicant has two adult children living with her who are both employed, and can contribute to the monthly household expenses.

h) The Applicant has reduced expenses, as she claims several of her monthly budget expenses through her business.

i) The child of the marriage resides primarily with the Applicant. [ 44 ] The Applicant’s evidence is that she is still struggling to maintain her monthly expenses. This is in part due to the fact that she is currently on disability.

I accept that evidence and thus, I am not satisfied at this point that the Applicant is self-sufficient. [ 45 ] However, I am satisfied for all the reasons above that the Applicant’s entitlement to an award of spousal support should be at the low end of the range for spousal support. [ 46 ] I have reviewed the Guideline amount at a net income for the Respondent set at $112,435 and the net income for the Applicant set at $50,000. The low range of monthly spousal support is set at $758.00 according to the Guidelines at these net incomes.

The Guideline is advisory only, thus I will use my discretion in the amount that I set going forward based on all the facts before me. [ 47 ] As I have found the Applicant has made strides towards self-sufficiency, but is not quite there and is still somewhat disadvantaged by the breakdown of the marriage, I am setting spousal support at: $450 per month. This amount is keeping in line with the step-down approach adopted by Justice Browne in the DJCRO. This amount will be reviewed when Cole graduates high school to determine whether the Applicant is self-sufficient at that time.

This is the fourth objective of s.15.2(6) : “in so far as practicable, promote the economic self sufficiency of each spouse within a reasonable period of time” Order [ 48 ] Based on the foregoing, I make the following Order, which is in the child’s best interests: 1. The within Order varies the Divorce Judgment and Corollary Relief Order granted by Justice Browne on October 24, 2017, with respect to parenting, child support and spousal support as follows: Parenting: 2. All powers, responsibilities and entitlements and decision making about the child, Cole Manegre, shall be shared between the parties. 3.

The Applicant shall have the primary day to day parenting with Cole. 4. The Respondent shall have reasonable and generous parenting time with Cole, to include but not be limited to 12 days per month on the Respondent’s days off from work, with the Respondent picking up and dropping off the child at the Applicant’s residence. 5. Neither party will make disparaging remarks about the other party or their partner, or other family members to the child. Neither party will question the child or focus conversation with the child about the private lives of the other party.

Neither party will expose the child to any disagreement between the parties and both parties will use best efforts to ensure the child is not able to overhear any disagreements or conflicts between the parties. 6. The parties will engage in family reunification therapy with the child, upon consultation and with the child’s consent having regard to his age. The cost for therapy will be shared equally between the parties. 7.

Any person who has parenting time or decision-making responsibility in respect of a child to whom this order applies, and who intends to change their place of residence or the residence of the child, shall notify every other person who has parenting time, decision- making responsibility or contact with the child under a court order. This notification must be given by email to the other party and must include the date that the change of residence will occur, the address of the new residence and any change in contact information resulting from the change in residence. 8.

Any person who has parenting time or decision-making responsibility in respect of a child to whom this order applies, and who intends to relocate, shall notify, at least 60 days before the relocation, every other person who has parenting time, decision-making responsibility or contact with the child under a court order. This notification must be given in the form prescribed by the regulations to the Divorce Act (Canada) by email. Child Support: 9. The Respondent shall pay to the Applicant ongoing base

section 3 child support in the amount of $995.00 per month, which is set off against the Applicant's child support amount of $412.00 per month, for a net child support amount payable by the Respondent to the Applicant of $583.00 per month, commencing on December 1st, 2021 and continuing on the 1st day of each and every month thereafter until further Order of this Court. 10. As of July 1st, 2021, the Respondent owes retroactive

section 3 child support arrears in the total sum of $16,558.00 calculated as follows: a. In 2018: For the months of January to August, monthly

section 3 child support shortfall in the amount of $2340; b. In 2018: For the months of September to December, monthly

section 3 child support shortfall in the amount of $2276; c. In 2019: For the months of January to December, monthly

section 3 child support shortfall in the amount of $6522; d. In 2020: For the months of January to June, monthly

section 3 child support shortfall in the amount of $2894;

e. In 2020: For the months of July to December, monthly

section 3 child support shortfall in the amount of $825; f. In 2021: For the months of January to July, monthly

section 3 child support shortfall in the amount of $1701. 11. The amount in paragraph 10 above, is to be paid by the Respondent to the Applicant as follows: a. On December 1st, 2021 a payment of $633; b. On January 1st, 2022, for a period of 35 months, a payment of $455 per month until paid in full. 12. The Respondent shall pay to the Applicant retroactive

section 3 child support in the amount of $583.00 per month for the months of August to November, 2021. The child support arrears for this time period is the total sum of $2332, less any amount paid by the Respondent pursuant to the Order of Justice Browne. This amount shall be payable forthwith. 13. The Respondent shall be responsible for 69% of

section 7 expenses, and the Applicant shall be responsible for 31% of

section 7 expenses, which are anticipated will be comprised of the following: a. Hockey for Cole; and b. Health related expenses 14. MEP Clause to be included. 15. Financial Disclosure Clause to be included. 16. Alberta Child Support Recalculation Program Clause to be included. Spousal Support: 17. The Respondent shall pay spousal support to the Applicant in the sum of $450 per month, commencing on the 1st day of December, 2021 and continuing on the 1st day of each and every month thereafter. 18.

The spousal support will be reviewed on or before September 2024 to determine whether the Applicant has been able to achieve self- sufficiency. Costs [ 49 ] As I find that both parties have had success in this application, I am using my discretion to direct that each party shall bear their own costs of this application. Heard on the 23 rd day of November, 2021. Dated at the City of Edmonton, Alberta this 7 th day of December, 2021. C.L. Arcand-Kootenay J.C.Q.B.A. Appearances: Patrizia Garland for the Applicant Ahmed (Ed) Tarrabain for the Respondent

_______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Madam Justice C.L. Arcand-Kootenay _______________________________________________________ The Dated date has been corrected to December 7, 2021. Counsel for the Respondent’s name has been changed to his full name.