Elliott v Elliott, 2023 ABKB 617

Court of King’s Bench of Alberta Citation: Elliott v Elliott, 2023 ABKB 617 Date: 20231102 Docket: 4801 150326 Registry: Calgary Between: Vincent Orrin Elliott Plaintiff (Respondent) - and - Lisa Louise Elliott Also known as Lisa Irving Defendant (Applicant) _______________________________________________________ Reasons for Decision of the Honourable Justice Janice R Ashcroft _______________________________________________________ Introduction [ 1 ] Vincent Orrin Elliott makes his living through a complicated arrangement of numerous interconnected companies and a family trust. The issue of Mr.

Elliott’s guideline income for the purposes of child support has been heavily litigated, already resulting in several hearings and appeals. [ 2 ] There is one child of the marriage, LE, born October 17, 2007. The child lives with his mother, Lisa Irving, and his

stepfather Matthew Irving in British Columbia. Mr. Elliott has not had any contact with the young person since 2016. Positions of the Parties [ 3 ] Ms. Irving asserts that Mr. Elliott has not properly disclosed full financial information, that he has purposefully restructured his businesses to minimize the amount of child support he is obligated to pay, and that he has not paid adequate or any child support for years on end. Ms. Irving also submits that Mr. Elliott has conducted abusive litigation. As a result of Mr. Elliott’s conduct, Ms.

Irving submits that she has had to spend a tremendous amount of money on legal fees. Ms. Irving denies ever trying to reduce contact between the child and Mr. Elliott, testifying that over the years LE just did not want to speak with his father. [ 4 ] Mr. Elliott argues that a consent order arising out of a judicial dispute resolution process at the Court of Appeal, in response to his appeal of an earlier Court decision, governs these proceedings. In addition, Mr. Elliott maintains that the money he actually receives coming out of his companies is much less than is reflected in the financial statements.

He also submits that Ms. Irving has breached the Matrimonial Settlement Agreement (“Settlement Agreement”) by moving the child away first to Cochrane, then to Okotoks and ultimately to British Columbia without his consent, and that Ms. Irving has thwarted parenting time with the child including phone calls. Mr. Elliott submits that Ms. Irving’s household lives an affluent lifestyle compared to Mr. Elliott’s household, and that Mr. Elliott was never consulted with respect to

section 7 expenses. Mr. Elliott denies not paying appropriate child support, saying that he is currently in a pre-payment position. Mr. Elliott also asserts that Ms. Irving has failed to disclose, particularly monies that he says were received from a rental property. Mr. Elliott also submitted in written closing arguments that the stepfather Mr. Irving should be declared in loco parentis .

Background and Prior Rulings [ 5 ] Certain court proceedings to date are important given the arguments of the parties, and to fully understand the trajectory of the litigation. [ 6 ] On November 8, 2012, a Divorce Judgment and Corollary Relief Order was issued. The parties were granted joint custody of the child with primary care to Ms. Irving. Mr. Elliott’s income was set at $175,000 with

section 3 child support being paid at $1,528 per month. Ms. Irving’s guideline income at that time was set at zero. Threshold amounts for guideline income which would trigger an increase and decrease in child support payable by Mr. Elliott were also set, being $250,000 and $100,000 respectively. [ 7 ] A 2016 decision by Erb J, set Mr. Elliott’s guideline income for the years 2012-2015 (the Erb decision). Justice Erb attributed pretax corporate income to Mr. Elliott’s guideline income for all entities which Mr. Elliott wholly owned. She declined to attribute any pretax corporate income to entities in which Mr.

Elliott had a partial interest. [ 8 ] Mr. Elliott appealed the Erb decision but the appeal was settled through a JDR process at the Court of Appeal, resulting in the consent order (the Consent Order). The Consent Order addressed arrears and directed the parties to jointly retain an expert to determine income over certain time periods. The Consent Order also indicated that child support was to be based on the guideline income of Mr. Elliott for the previous year. [ 9 ] An expert (the 1 st Expert or Mr. Das) was retained pursuant to the Consent Order. Ms.

Irving took issue with the 1 st Expert’s findings on the basis that Mr. Elliott himself claimed guideline line 150 income of $319,734, yet the 1 st Expert found that Mr. Elliott’s guideline income available for child support was only $36,566. [ 10 ] Justice Antonio, as she then was, heard the application and decided that because child support is the right of the child, the parties could not be bound by, what she found to be, a fundamentally flawed report: VOE v LLE , 2018 ABQB 940 , at para 31 , rev’d on appeal 2019 ABCA 201 . She proceeded to set Mr. Elliott’s guideline income for 2016 as his line 150 income.

This number was to be used to calculate child support from July 1, 2017 through to June 30, 2018. [ 11 ] Mr. Elliott appealed Justice Antonio’s Order. The Court of Appeal allowed the appeal and directed the matter to be reheard. The Court of Appeal, in part, held that the matter required viva voce evidence. [ 12 ] Ms. Irving proceeded back to Family Docket Court where I, as the sitting docket court Justice, ordered the matter to a domestic special to set a litigation plan for the rehearing, and address parenting issues brought forward by Ms. Irving. At that time Mr.

Elliott requested that the issue of jurisdiction between the Court of King’s Bench and the Court of Appeal with respect to the Consent Order also be heard. [ 13 ] Mr. Elliott then incorrectly framed the issue of jurisdiction as a contempt of court issue. Justice Dilts would not allow the issue of alleged contempt of court to be scheduled as part of the domestic special, as it did not purport to deal with any jurisdictional issue and was not what I directed. [ 14 ] In March 2021, Justice Bensler heard the domestic special and set a litigation plan for a viva voce trial. She did not hear Mr.

Elliott’s issue regarding jurisdiction and the enforcement of the Consent Order, which she directed Mr. Elliott to bring in a separate motion. The litigation plan, as directed by Bensler J, permitted each party to bring their own expert, set deadlines for the reports to be provided for each expert, and allowed for Questioning. She also directed that Mr. Elliott’s guideline income be set for 2017 to the date of trial for the purposes of ascertaining retroactive support even though the prior Consent Order indicated that the child support to be paid for 2017 was to be based on Mr. Elliott’s 2016 income. Mr.

Elliott did not appeal Justice Bensler’s Order until over 2 years had passed and on the eve of the June 2023 trial. Ongoing child support obligations were also to be determined. [ 15 ] In June 2021, Mr. Elliott applied to Associate Chief Justice Rooke, as he then was, ex parte , to have Ms. Irving declared a

vexatious litigant. Justice Rooke dismissed Mr. Elliott’s application, finding that Mr. Elliott had attempted a collateral attack on Justice Bensler’s Order and that Mr. Elliott’s application was abusive: VOE v LLE , 2021 ABQB 350 para 9 . [ 16 ] The matter was then pre-tried by Justice Grosse (as she then was) and Justice Malik. [ 17 ] Justice Grosse allowed Mr. Elliott an opportunity to apply to have the issue of the enforcement of the Consent Order reviewed, but he missed those deadlines. Instead, Mr. Elliott later attempted to have Justice Grosse stay the Bensler Order, which she declined to do. [ 18 ] Mr.

Elliott then applied through Urgent Chambers to strike Justice Bensler’s Order. Justice Malik dismissed the application and ordered $5,000 costs against Mr. Elliott. [ 19 ] Shortly before this trial was to begin, Mr. Elliott attempted to file an appeal of the Bensler Order, again arguing that the parties were bound by the 1 st Expert report, but Slatter JA rejected the appeal: Elliott v Elliott , 2023 ABCA 191 . [ 20 ] Mr. Elliott also argued at the trial that the application and materials before Bensler J were not stamped “filed” and therefore the matter should not have been heard by Bensler J. Mr.

Elliott maintained that this was, at least in part, the reason he brought the vexatious application before Justice Rooke. Counsel for Ms. Irving explained that the materials were sent for filing through the court filing system but were not returned in a timely manner with a “filed” stamp. Counsel points out, however, that Mr. Elliott received a copy of the materials prior to the application. [ 21 ] A review of the transcript of the hearing before Justice Bensler shows that Mr. Elliott clearly received the materials on which Ms.

Irving relied (with the exception of proposed draft Orders submitted by counsel shortly before the hearing). Mr. Elliott had also filed materials in response, and notwithstanding the lack of a filing stamp, all materials were before Bensler J at the domestic special. I do not find this adequate excuse for Mr. Elliott’s application to have Ms. Irving declared a frivolous and vexatious litigant before Justice Rooke. [ 22 ] Mr.

Elliott also advised during the trial that he did not appeal Justice Bensler’s Order due to the lack of a “filed” stamp on the materials and also because he did not get the transcripts until much later. I reject that position. While it does appear that there were some problems with obtaining the stamp on the filing, as noted above, and delay in obtaining the transcripts, Mr. Elliott (albeit with counsel) had been through the appeal process before, with respect to the earlier decision of Justice Erb’s decision. There was no evidence that Mr.

Elliott even attempted to file an appeal of the Bensler Order until April, 2023. [ 23 ] Mr. Elliott continued to argue that the June, 2023 hearing before me should not proceed as the disputed 1st Expert report governed his guideline income as well as the framework to determine guideline income going forward. Mr. Elliott further submitted that the retained expert was an arbitrator and the matter should be in arbitration. [ 24 ] Ms. Irving objected to Mr. Elliott being allowed to now raise this argument at the trial on the basis that Mr.

Elliott had numerous opportunities to make this argument throughout the King’s Bench litigation and he declined to do so. Should Mr. Elliott be given an opportunity to provide further evidence and argument that the 1 st Expert report is binding on both parties pursuant to the Consent Order? [ 25 ] I heard submissions and some limited evidence in regard to the events surrounding the 1 st Expert’s report. I then made a ruling mid-trial that I was not going to consider further evidence and argument on the issue as to whether the 1 st Expert report bound the parties to the guideline income and an arbitration process.

For completeness of this matter, I have included certain portions of my oral decision in this main decision edited for organization and minor supplementation. [1] I have included an ellipsis where there is omitted words from my oral decision. [ 26 ] (...) In an effort to fully understand Mr. Elliott’s argument as a self represented litigant I allowed him considerable time to make his argument as to the relevance of the Consent Order in this trial and whether, procedurally, it was appropriate for him to now bring this application and make this argument. [ 27 ] In the result, I understand Mr.

Elliott’s argument that he wants the Strekaf Consent Order to govern and on an

interpretation of that Order, he submits that the parties are to be bound by the Das report. However, with respect, Mr. Elliott’s argument, totally ignores the entirety of the litigation that has occurred to date (...) [2] [ 28 ] (...) When the father appealed Justice Antonio’s order the Court of Appeal was aware of the JDR Consent Order, (...), yet there was no direction from the Court of Appeal that the Consent Order governed precluding any challenge to the Das report, or that the parties having retained Mr.

Das were foreclosed from challenging his report. [ 29 ] There was also no comment from the Court of Appeal that Mr.

Das, pursuant to the Consent Order, had the powers of an arbitrator and therefore the parties were foreclosed from accessing the Court for further resolution. (...) [ 30 ] They go on to state significantly in paragraph 10: As to the first point, while we applaud the chambers judge’s willingness to resolve the matter, we think that because the appellant was relying on the expert report which the respondent refuted, and in the absence of an agreement to be bound by the result , viva voce evidence was required to resolve this dispute.

. .... [ 31 ] (...) In other words, the Court of Appeal has interpreted the Consent Order, including presumably the non variation of the process intention in the

preamble, that the parties were not bound by the result of the jointly retained expert. The Court of Appeal also was aware at the time of their decision that the parties had retained another forensic accountant to review the work of the first and calculate Mr. Elliott’s ongoing guideline income.

The Court of Appeal, in interpreting the Consent Order, anticipated that the rehearing would involve at least one additional expert. [ 32 ] On the basis of the Court of Appeal’s findings including that there was the absence of an agreement to be bound by the result, the parties were free to challenge the Das report and they did so. It is not open to Mr. Elliott to now say the Consent Order should be interpreted as not allowing any challenge to the Das report or that the parties are bound by his

interpretation of that report. [ 33 ] In any event, at the very first docket appearance, I, as sitting docket court justice that day, allowed Mr. Elliott to bring a cross application to argue the issue of the enforceability of the Consent Order. At the special chambers hearing, Mr. Elliott also represented that Justice Bensler allowed him to argue his issue with respect to the enforcement of the Consent Order in a different proceeding. [ 34 ] However, there is no evidence that he made either of those applications in a timely way. The matter proceeded onwards.

He again raised the issue in a pretrial with Justice Grosse and she gave him yet another opportunity to bring the issue forward before the trial. Again, he declined to do so. [ 35 ] In early 2023, with the trial coming, Mr. Elliott applied to Justice Malik to strike the Bensler Order. Justice Malik dismissed that application. Apparently, the Malik Order is being appealed. [ 36 ] Only in April, 2023, did Mr. Elliott appeal Justice Bensler’s Order. Mr.

Elliott could have made objections much earlier in the proceedings if he believed the JDR Consent Order governed in such a manner as to preclude any challenge to the Das report (...) [ 37 ] (...) The most obvious course of action for Mr. Elliott, should he have had dissatisfaction with Justice Bensler’s Order, was to appeal that Order. He could have appealed it on the grounds, as alleged here by Mr. Elliott, that the JDR Order or the direction of the Court of Appeal arising out of same, was not being followed in terms of the “rehearing” of the challenge to the expert evidence. [ 38 ] Mr.

Elliott finally appealed Justice Bensler’s decision almost 2 years after her Order: Elliott v Elliott , 2023 ABCA 191 . The appeal was dismissed with Slatter JA stating: [4] The notice of appeal was filed on April 20, 2023, or over two years after the scheduling order was granted. This is far beyond the 30- day deadline in R.14.4(5)(

b) for filing appeals in divorce proceedings. The delay is inordinate and allowing an appeal at this late stage would cause further delay, expense, and prejudice to the respondent. [5] The applicant intends to argue on the appeal that the five-day hearing is inappropriate because the amount of child support he is to pay was set by previous consent orders, and the parties agreed to arbitration. If the applicant wanted to advance those issues, he was obliged to appeal the scheduling order in a timely way. [ 39 ] I agree with Mr. Elliott that parties should be held to agreements made. However, the Court of Appeal has indicated in their

interpretation of the Order that there was an absence of an agreement to be bound by the expert report (...) [ 40 ] For this trial to now hear the argument that the process being followed is in error, either as directed by the Court of Appeal or through the Bensler Order, is a collateral attack on several Orders of this Court and the Court of Appeal (...) [ 41 ] There is an argument that the parties should follow the Consent Order in terms of how guideline income is assessed, varied annually on July 1 based on the prior year’s guideline income.

However, again this issue was not argued in earlier motions and Justice Bensler specifically indicated in her Order that guideline income was to be assessed from June 2017 to the date of trial. Ms. Irving followed this Order and if Mr. Elliott believed the Order was in error, and as very recently noted by Justice Slatter, he had a right of appeal which Mr. Elliott declined to exercise until almost two years later. [ 42 ] In the result and for the reasons above, I decline to hear further evidence and argument regarding whether the parties are bound by Mr.

Elliott’s guideline income as assessed by the Das report and bound to an arbitral process as set out in the Consent Order. [3] [ 43 ] The trial will proceed following the issues to be determined as set in the Bensler Order. [4] The Expert [ 44 ] Nikki Robar (Ms. Robar or the Expert) was qualified to give evidence in the area of accounting, business evaluation, taxation of business interests, investigative accounting, income quantification from corporate interests, as well as aspects of corporate reorganization. [ 45 ] Ms.

Robar restricted herself to the scope of opinion within her expertise and clearly set out the assumptions on which her expert opinion was based. She provided balanced evidence to the Court and testified that regardless of whether she was retained by Ms. Irving or Mr. Elliot, her report would be the same. She qualified this by also saying that if Mr. Elliott had retained her she may have had better access to documentation and information regarding the decision making within the various corporations.

At the end of her rebuttal evidence, in response to a question from the Court she acknowledged that, after hearing Mr. Elliott’s testimony, her opinion with respect to the highest assessed guideline income scenario as set out in her report (Scenario C), was less likely to be a fair assumption as she recognized that the companies did need some money to carry on. While I would have preferred her to provide this testimony in rebuttal on her own accord, overall I found her to appropriately fulfill her role as an expert witness.

[ 46 ] Mr. Elliott did not call the 1st Expert, nor did he call any other expert to review the financial information and provide another opinion. Instead, Mr. Elliott relied upon his own calculations based on what he perceived to be the framework set out by the 1 st Expert report and another expert report before Erb J. [ 47 ] Ms. Irving’s counsel objected to the introduction of the 1 st Expert report without the expert being called . I did not allow the 1 st Expert report to be tendered given that no notice was provided to Ms. Irving, in accordance with the Bensler Order, and that Mr.

Elliott intended to submit the 1 st Expert report without any testimony from the 1 st Expert. I found that tendering the 1 st Expert’s report without calling the expert invited the same sort of problems referenced in the Court of Appeal’s earlier decision. Guideline income with Adjustments before pre-tax corporate attribution [ 48 ] As explained by the Expert, even though there are currently numerous interconnected entities in which Mr. Elliott has either a whole or partial interest, it is helpful to categorize most of the companies into two groups: the Evolution Group and the Allied Group.

Within these groups there are essentially two revenue generating companies, Evolution Production Equipment Ltd. (Evolution Ltd.) and Allied Vessel Fabrication Ltd. (Allied Ltd.). Evolution is a production equipment company which is involved in sales, design and project management for upstream and mid stream oil and gas equipment. Allied is a pressure vessel fabricator located in Stettler, Alberta.

Allied purchases cylindrical shells and caps, which it welds together, and installs connection points, to create a pressure vessel. [ 49 ] Evolution Ltd. and Allied Ltd. each reports profits which are then distributed as dividends to shareholders, including Evolution Elliott Holding Corporation and Allied Elliott Holding Corporation. Mr.

Elliott is the sole director and president of these holding companies, as well as another interconnected holding company, the Vince Elliott Holding Corporation. [ 50 ] The Vince Elliott Family Trust (the Family Trust) holds shares in the two groups of companies, including the Vince Elliott Holding Corporation, Evolution Elliott Holding Corporation, Evolution Ltd., Allied Elliott Holding Corporation, and Allied Ltd. [ 51 ] Mr. Elliott also has an interest, through the Family Trust, in Vince Elliott Consulting Corporation (the Consulting Corporation), a corporation through which Mr.

Elliott had previously billed and received consulting fees from the other corporations. The Consulting Corporation, however, did not report income between 2017-2022. [ 52 ] The Family Trust also holds 25 percent of the common shares in 1824215 Alberta Ltd. which exists to serve as a leaseholder for the industrial property from which Allied Ltd. conducts its operations. [ 53 ] Additionally, Mr. Elliott holds 50 percent of the shares in a company, 1385759 Alberta Ltd. (138 Alberta Ltd.) which holds real property and reports rental income.

This real property previously served as the office of Evolution Ltd. (and its precursor) with that entity paying rental monies to 138 Alberta Ltd. [ 54 ] The Expert advised that under a pre-2017 structure, the operations of the business were conducted within partnerships, being the Evolution Equipment Partnership and the Allied Vessel Fabrication Partnership. Mr. Elliott was a partner in these entities. The income from the partnerships was then reported in profit and loss statements of the partners, proportionate to each partner’s ownership.

However, from 2017 onwards, the operations were reorganized so that Evolution Ltd. and Allied Ltd., as outlined above, are now where the money is earned. The partnership model is gone and the earnings stay in the companies until they are declared through dividends. [ 55 ] The Expert opined that despite the restructuring, Mr. Elliott still effectively owns 50 percent of Evolution Ltd. and 25 percent of Allied Ltd. which was similar to his interests in 2016. [ 56 ] First, I accept the general formulas and methodology as set out in Ms.

Robar’s report in terms of adherence to the Federal Child Support Guidelines , SOR/97-175 ( Guidelines ). [ 57 ] Annual income is calculated using the “Total income” in the T1 General form issued by the Canada Revenue Agency and adjusted according to

Schedule III: Guidelines , ss 16-20. Depending on the circumstances, the Court can modify this value to determine income more fairly. [ 58 ]

Section 18 allows the Court to pierce the corporate veil if satisfied that the income, as determined under

section 16, does not fairly represent the amount available to pay child support.

Section 19 provides a non-exhaustive list of circumstances allowing the court to impute income, including when a significant portion of income is derived from dividends: Guidelines , s 19(h). [ 59 ] The Expert started with Mr. Elliott’s line 150 income, deducted out the taxable dividends and added back in the actual dividends, as well as any carrying charges and interest. To accurately capture Mr.

Elliott’s actual income available for child support, the taxable dividend amount must be replaced with the actual dividend amount: Guidelines , Sched III, s 5; Julien D Payne & Marilyn A Payne , Child Support Guidelines in Canada, 2022 (Toronto : Irwin Law, 2022) at 126 . [ 60 ] The Expert then assessed whether there was any personal benefit received by Mr. Elliott in the expenses claimed by the corporation. The onus to justify these expenses is on the parent claiming the expense.

As set out in Cunningham v Seveny , 2017 ABCA 4 at para 27 : The content of required disclosure must be sufficient to allow meaningful review by the recipient parent, and must be sufficiently complete and comprehensible that, if called upon, a court can readily discharge its duty to decide what amount of the disclosing parent’s annual income fairly reflects income for child support purposes. [ 61 ] Mr. Elliott conceded at trial that the dividends paid to his wife in 2017 should be added back. I agree with this concession. The transaction was not at arms length and while Mr.

Elliott submitted how much he valued his wife’s assistance, he admitted that they had just had a child around that time and did not provide specifics as to his wife’s new role which would justify the monies paid.

[ 62 ] The Expert also added back 50 percent of home office and utilities as a personal benefit in accordance with section 19(1) (

g) of the Federal Child Support Guidelines . On balance, I find the 50 percent add back is fair. The Consulting Corporation had no income between 2017-2022, which negated the need for a home office. Additionally, Evolution Ltd. had a separate outside office at least for part of the time period under question. However, I do accept that Mr.

Elliott worked at home during the evening, and for periods of time during the COVID years. [ 63 ] Other expenditures, including a $50 per month cell phone charge grossed up for income tax, and 25% add back for personal vehicle use are also appropriately added back with a gross up. The cell phone add back is consistent with Mr. Elliott’s proposals for guideline income wherein he submits that while Evolution reimburses him with a cell phone allowance of $300 per month, $50 per month of that is personal in nature.

He also submitted in the same document that there is a monthly averaging allowance for business usage of personal vehicle of $975 per month based on a per kilometer basis; however in the absence of more specific evidence on this point, I find a 25 % add back is appropriate. [ 64 ] Mr. Elliott’s guideline income then, before corporate attribution, but after certain adjustments, is as follows: Year Guideline Income before corporate attribution ($) 2017 $226,015 2018 374,553 2019 453,559 2020 293,961 2021 271,416 2022 373,301 Three Scenarios as to Pre-Tax Corporate Attribution [ 65 ] The Expert then opined on Mr.

Elliott’s guideline income using three scenarios. The Expert indicated that the scenarios she developed were informed by Justice Erb’s decision and

section 18 of the guidelines. [ 66 ] Scenario A assesses guideline income using the amount of pre-tax corporate income from only companies which are wholly owned by Mr. Elliott at this time. This amount results in Mr.

Elliott’s guideline income being set at. [5] Scenario A 2017 2018 2019 2020 2021 2022 Guideline Income (before corporate attribution) $226,015 374,533 453,559 293,961 271,416 373,301 Deduct: Dividends otherwise included in income that arose from earnings of the subject companies - - - - - - Add: Pre-tax corporate income 19,222 - - - - - Guideline Income (rounded) 245,000 374,500 453,500 294,000 271,500 373,500 [ 67 ] Scenario B assesses Mr.

Elliott’s guideline income as if he did not restructure in 2017 and instead retained his wholly owned partnerships. [6] This reflects the approach of Erb J but does not reflect Mr. Elliott’s current corporate interests. Erb J did not attribute any pre-tax corporate income to Mr.

Elliott from any companies from which he had a partial interest under the rationale that there was no evidence that he was not at arms length from these companies: Scenario B 2017 2018 2019 2020 2021 2022 Guideline Income (before corporate attribution) $226,015 374,533 453,559 293,961 271,416 373,301 Deduct: Dividends otherwise included in income that arose from earnings of the subject companies - (186,631) (222,939) (134,400) (116,565) (169,959) Add: partnership income (loss) in the absence of restructuring 293,630 271,737 119,061 (46,210) 224,068 514,323 Add income / deduct losses from other wholly owned companies (7,402) (13,535) - - (1,480) (2,378) Net corporate attribution 286,228 71,570 (103,878) (180,610) 106,023 341,987 Guideline Income (rounded) 512,000 446,000 349,500 113,500 377,500 715,500 [ 68 ] Scenario C reflects corporate attribution in proportion to Mr.

Elliott’s current interests, including those in which he has only partial ownership: [7] Scenario C 2017 2018 2019 2020 2021 2022 Guideline Income (before corporate attribution) $226,015 374,533 453,559 293,961 271,416 373,301 Deduct: Dividends otherwise included in income that arose from earnings of the subject companies (191,287) (360,906) (448,650) (288,650) (266,570) (368,219) Add: adjusted pre-tax corporate income (net) 463,228 542,882 220,996 (83,969) 473,808 1,048,312 Net corporate attribution 271,941 181,977 (227,619) (372,519) 207,238 680,093 Guideline Income (rounded) 498,000 556,500 226,000 (78,500) 478,500 1,053,500

[ 69 ] Mr. Elliott maintained that the expert was not using proper accounting methods and that she should have used accrual accounting. Mr. Elliott emphasized that the financial statements did not reflect his own personal experience in terms of how much money was coming into the companies and what was needed to pay expenses and keep the company engaged in purchasing forklifts, larger capital projects, and lines of credit. [ 70 ] Ms. Robar confirmed that her accounting method was accrual accounting.

She advised that financial statements are prepared on an accrual accounting basis; where an expense is incurred to earn revenue that is reported, if the expense is not immediately paid, it is recorded as an accounts payable. Revenue that is owed, but not yet received is reported as accounts receivable, so there is a matching principle at play. Ms. Robar indicated that costs of materials should be reported as expenses in the period they are incurred. Accounts payable capture work in progress and reports that snapshot in the financial statements. Ms.

Robar also stated that the Canada Revenue Agency has an expectation of accrual accounting and that these companies use accrual accounting; they are sophisticated and have year end journal entries. [ 71 ] The Expert also explained that pre-tax corporate income is different from retained earnings and different from dividends. Dividends reflect what amount can be extracted from the company, not what has been earned in a discrete fiscal year. Retained earnings are an accumulated amount that is reported in each year reduced by the payment of dividends. Ms.

Robar also indicated that she had not double counted income and had reviewed pre-tax corporate income of each company in discrete years. [ 72 ] The Expert also stated that the companies appeared to be in strong financial health given that she was not presented with any information supporting shareholder loans, long term debt, or capital expenses. Ms. Robar indicated that Allied and Evolution have machinery, but the companies are not capital intensive, noting that it appeared that projects that required large equipment were subcontracted out.

How much Pre-Tax Corporate Income to Add [ 73 ] Business owners who are liable for child support should have the flexibility, assuming they are following relevant tax, employment and human rights law, to create and manage their business interests in a manner which maximizes productivity and profit. They are also allowed to change or restructure those business interests over time. [ 74 ] Legitimate business purposes must be balanced, however, against the risk that a parent may use a corporate structure to divert, manipulate, or shelter their income to avoid paying adequate child support.

Certain criteria informing the exercise of judicial discretion in adding back any pre-tax corporate income, include a consideration of the role the parent plays in the corporation, whether the parent is the sole shareholder, the degree of control the parent exercises, whether retained earnings are required to manage the business and ensure ongoing financial viability, or whether the retained earnings could be available to pay child support: Goett v Goett , 2013 ABCA 216 at para 16 . [ 75 ] Where guideline incomes are at issue, parents must expect increased scrutiny over certain organizational structures which provide less transparency in terms of money available for child support.

Such is the case here where almost immediately after Justice Erb stated that she would not count his interest or revenue in partially owned corporations as monies available for child support, Mr. Elliott changed his business structure into one wherein the main revenue producing business entities were restructured into ones wherein he only had a partial ownership interest. [ 76 ] Mr. Elliott denied that the restructure was a method to shelter income for child support purposes. He indicated that his partners would not conspire and stockpile funds on his behalf.

However, the corporate reorganization is linked so closely in time to Justice Erb’s decision that appropriate and detailed justification must be provided by Mr. Elliott. [ 77 ] Initially, Mr. Elliott did not seem to know specifically why the restructuring was implemented indicating that it was advice provided to him by his accountant and his tax lawyer. He later indicated that the restructuring came about because of changes in tax law regarding income splitting. Mr. Elliott advised that some of the other partners and spouses were going to split income even though he did not intend to do so. Mr.

Elliott, in describing the companies generally in earlier testimony, also stated that liability was a concern. [ 78 ] The Expert indicated that changes to income splitting only occurred in 2019 which was years after the change to the business structure was made. [ 79 ] The Expert agreed that if starting from scratch a fully corporate structure would be the norm. However, she could not discern any business reason to change the structure of the partnerships in this particular case. She testified that she would have understood the change for liability reasons if Mr.

Elliott was simply changing a full partnership model to a corporate structure; however, the partnerships in 2016 were ultimately held through corporations. [ 80 ] I find, given the timing of the reorganization in relation to Justice Erb’s decision, the ongoing litigation and Mr. Elliott’s failure to provide proper justification for the reorganization, that the main reason Mr. Elliott reorganized, was to reduce his guideline income to reduce his child support obligation. [ 81 ] Related, the significant increase in retained earnings in Allied Ltd. that occurred after the Erb decision also supports that Mr.

Elliott made other conscious business decisions to try and reduce his assessed guideline income. Mr. Elliott testified that shareholders are incentivized not to keep retained earnings into the company for liability purposes yet the retained earnings in Allied Ltd. increased from a deficit of $125,275 as of January 1, 2017 to retained earnings of $2.18 million as of December 31, 2022. Mr. Elliott testified that the retained earnings were necessary to pay off suppliers.

However, no additional specific evidence was provided as to who these suppliers were or the amount required. [ 82 ] The Consulting Corporation reported no income from 2017-2022 despite Mr. Elliott’s testimony that he still did significant work for the companies. This lack of billing was in contrast to at least one other partner who continued to bill the companies for services.

[83] Mr. Elliott said that there was leasing on forklifts, and cranes for the both the yard and the shop. Mr. Elliott seemed ideallyplaced to provide these specifics since he testified that he took care of the billings for both corporations, knew about their profitabilityand knew what had to be paid out. Yet he did not provide any specifics regarding these leases or plans to purchase capital equipment forspecific contracts or otherwise. Mr. Elliott acknowledged that there were no shareholders loans. [84] Mr.

Elliott also testified that the condo in the beltline, set up through one of the companies in which he has an interest, 138Alberta Ltd., was purchased as office space, which the company has since outgrown. Mr. Elliott indicated that it was now a rentalproperty and has a mortgage on it. He further testified that the property was costing him money; however, he indicated that he did nothave the amount owed on the mortgage in front of him at the trial. When asked about what the rental could generate in revenue, heindicated that he doesn’t think about that space much. Mr.

Elliott was in the middle of a trial where income was the main issue. His rolein the corporations appeared, at least in part, to deal with the money side of the businesses. I don’t accept that Mr. Elliott would not haveturned his mind to some of these assets and potential revenue streams. [85] For the above reasons, I find that Scenario A, which includes pre-tax corporate income related only to wholly owned entities,would not adequately reflect the amount of money Mr. Elliott has available for child support. [86] I also agree with counsel for Ms. Irving that a child support formula based only on Mr.

Elliott’s current business frameworkwill soon become out of date. I find, given Mr. Elliott’s restructuring to date and his testimony that his efforts with respect to thesecompanies are unsustainable, that Mr. Elliott will likely continue to restructure in some fashion. Scenario A does not provide a fair andworkable formula going forward. [87] Scenario C, which includes adjusted pro-rata pre-tax corporate income from all Mr. Elliott’s corporate holdings is also notappropriate. I note the expert’s answer to the Court’s question in rebuttal: having heard Mr.

Elliott’s testimony, she believed it was “lesslikely” that Scenario C would be an appropriate assessment of his income going forward. I am mindful that the jurisprudence requiresspecific information, and not general reference, to justify not attributing pre- tax corporate income on the basis that the corporation hasfuture capital purchases or other needs: Beeching v Beeching, 2006 SBQB 542. However, given the nature of the businesses, I acceptMr. Elliott’s testimony that the revenue generating companies need some monies for revolving lines of credit and leasing on forklifts orcranes. I also find that while Mr.

Elliott restructured, in the main, to reduce his child support obligations, the involvement of othershareholders and partners in some of the other entities, mitigates to some extent a full attribution of pre-tax corporate income inproportion to all of his interests. [88] Mr. Elliott has submitted as an exhibit a document titled Vince Elliott Guideline Income Using MNP Methodology 2017-2021as well as another document titled

Summary of 2022 Guideline Income. Pursuant to Mr. Elliott’s calculations his guideline incomeincludes a range of two years of negative guideline income to a high guideline income of $359,313.60 in 2018. Mr. Elliott’s approachincludes consideration of pre-tax income only from his currently 100% owned interests. He also deducts corporate loss. I reject Mr.Elliott’s method of assessment. [89] Again, I emphasize that the purpose of

section 18 of the Guidelines is to provide a source of additional funds for child supportpurposes by allowing a court to include pre-tax corporate income, when income determined under

section 16 “does not fairly reflect allthe money available to the spouse for the payment of child support” (emphasis mine). This purpose was stated early on in the case ofBaum v Baum (1999), (BC SC), 182 DLR (4th) 715, [1999] BCJ No 3025, at para 28: Valid corporate objectives may differ from valid child support objectives. The purpose of s. 18 is to allow the court to "lift the corporateveil" to ensure that the money received as income by the paying parent fairly reflects all of the money available for the payment of childsupport. ... [90] See also Bear v Thompson, 2014 SKCA 111, at paras 68-69. [91] Mr. Elliott here is attempting to use this

section for the inverse purpose of lowering the amount of money available for thepayment of child support. This approach was already rejected by Justice Antonio (as she then was) in her earlier decision in this matterVOE v LLE, 2018 ABQB 940, at para 31, rev’d on appeal on other grounds (2019 ABCA 201). [92] This leaves Scenario B for consideration. Scenario B assumes no reorganization and attributes pretax corporate income inproportion to the partners’ interests in the wholly owned entities that were previously in existence. Scenario B is imperfect.

Thisframework would fully attribute pretax corporate income to Mr. Elliott from his revenue generating entities and as noted in mydiscussion of Scenario C, there was some evidence by the Expert that these corporations require additional monies to carry on. However,I am still faced with a lack of specific evidence, particularly from Mr. Elliott, as well as a lack of supporting documentation as to evenwhat approximate amount the corporations need for ongoing revolving credit lines and potential leasing expenses. Given this evidentiaryvacuum, I cannot simply assign an amount.

I do note that previous working capital agreements whereby the corporations agreed tojointly and severally maintain a minimum balance of $250,000 working capital in the holding corporations, were not followed. Thispersuades me, along with the Expert evidence that the corporations appear to be in good health and were not capital intensive, that pretaxcorporate attribution pursuant to Scenario B is appropriate. [93] Scenario B recognizes the different entities, provides some flexibility within Mr.

Elliott’s business framework for certainentities to be partially owned, appropriately follows the child support guidelines, and provides a strong roadmap for the parties goingforward.[8] [94] I find that the guideline income numbers pursuant to Scenario B most fairly reflects the amount of money Mr. Elliott hasavailable for child support. High Income Earners-What is the amount of child support that

should be paid? [95]

Section 4 of the Guidelines, which addresses incomes over $150,000, gives the Court discretion, to deviate from the Tableamount if that amount would be inappropriate.

If inappropriate, the Court will direct the Table amount plus an additional amount that thecourt considers fair considering the circumstances of the children, and the financial ability of each spouse to contribute: Guidelines, s 4;Ewing v Ewing, 2009 ABCA 227 para 44. [96] In Ewing the Court summarized at paras 41-46 the guiding principles in Francis v Baker, (SCC), [1999] 3S.C.R. 250 including that there is a presumption that the Table applies to all incomes including those over $150,000 and that a partyseeking to deviate from the Table has the onus of rebutting the presumption (para 45).

The closer the amount is to $150,000, the morelikely it is that the Table amount will be awarded (para 46). [97] The test for deviation from the Table amount is that the evidence, in its entirety, must be sufficient to raise a concern that theTable amount is inappropriate: Ewing para 45. The evidence for departure from the Guidelines must be clear and compelling, and thecentral focus must be on the conditions, means, needs and circumstances of the child (para 46). [98] There was limited evidence provided in terms of the specific expenses of each household.

I am mindful of the jurisprudencewhich emphasizes that the Court may demand further financial and budgetary evidence as required to properly decide the issues. Mr.Elliott has not been involved with the child since 2016 and likely could not speak to the child’s current needs and circumstances. Mr.Elliott also seemed unaware of the Guidelines as they applied to incomes over $150,000 and I asked for submissions on this point at theend of the hearing. [99] Ms. Irving and Mr.

Irving did not provide a specific budget; however, they did provide some evidence about their lifestyle,the child’s character and needs, the child’s schooling, his extracurricular pursuits, interests, and ambitions, and included receipts forsome of LE’s activities. The parties participated in extensive pretrial meetings and while Mr. Elliott was self represented both parties hadample opportunity to prepare for the trial, provide evidence and present their case.

On balance, I find, as per Bradley v Bradley, 2023ABKB 128 , 2023 ABQB 128 para 40 that the record is sufficient for me to ascertain the needs of LE, as well as proceed to setchild support, in this higher earner situation, without being unfair to the parties. [100] Both parties have additional children to now support in their new relationships. The Irving family lives in a nice house and has avacation home. Ms. Irving also gave evidence that LE has been and is engaged in high cost, high level competitive sports includingskiing, lacrosse and various forms of biking.

The young person attends a private school geared towards supporting his sporting talents.Ms. Irving stated during the earlier years after the separation she had to be creative to be able to keep the child in sports. Theseextracurricular activities are more appropriately addressed as

section 7 expenses; however, it is important to consider the child’s day today activities and interests as part of understanding his lifestyle, needs and circumstances. [101] Given this evidence, it is reasonable to infer that LE’s portion of expenses for the family’s current housing, vehicle, vacationand other discretionary expenses is higher than average. [102] While it does appear that Ms. Irving’s standard of living is somewhat higher than Mr. Elliott’s, I still find that Mr. Elliott enjoysa high standard of living. While Mr.

Elliott reports minimal travel and more modest extracurricular activities with respect to his youngerchildren, Mr. Elliott also lives in a nice house and has expensive vehicles. Had the family breakdown not occurred LE would still likelyhave enjoyed a lifestyle which included a nice house, and nice clothes. The young person would have been driven around in nice vehiclesand enjoyed restaurant meals on a regular basis. [103] In terms of the parties’ abilities to pay, as will become clear, Ms. Irving’s reasoning for not returning to the work force forhealth reasons is compelling.

She appears to be supported financially through Mr. Irving’s income and these earnings have beennecessary to assist in the support of LE over the years. Mr. Elliott earns significant monies through his interconnected companies;however, as noted in Ewing, there is no “assumption that children are automatically entitled to share in the entirety of the payor parent’swealth”: para 54. [104] Mr. Elliott urges me, most notably in his closing written submissions, to consider Mr. Irving’s job as related to Ms. Irving’sstandard of living, and the ability of Mr. Irving to contribute to the support of the child.

However, Mr. Elliott failed to cross examine Mr.Irving on his income or assets. [105] Ms. Irving has invested in having the advice and expertise of counsel. This issue relates to whether Mr. Elliott, a high incomeearner, should be able to reduce his child support obligations through contributions by Mr. Irving. I find, in these circumstances, it is notfor the trial judge to cross examine Mr. Irving to ascertain his income and assets to support Mr. Elliott’s argument that Mr. Elliott shouldpay below the Table amount. I will address, however, the issue of Mr.

Irving’s potential responsibility to contribute to the support of thechild under

section 7 expenses. [106] Using Ms. Robar’s figures with respect to Scenario B, and the Table amount, Mr. Elliott will be required to pay monthly childsupport in the lower amount of $1,004.60 in 2020 to a high amount of $6,068.20 in 2022. The amount of $6068.20 assessed as a standalone number may, at first glance, seem unreasonably high for the support of LE. However, when considering this amount, within theentire context of how Mr. Elliott makes his living and the conditions, means, needs and circumstances of LE, the assessed Table amountdoes not raise a concern that the Table amount is inappropriate. [107] Mr.

Elliott’s businesses operate in the changeable oil and gas industry, leading to yearly fluctuations in profit and his resultingguideline income. It is important to understand then that in some years LE’s support from Mr. Elliott may be relatively minimal while inother years the support will be quite generous. I find it would be unfair, given the volatility of Mr. Elliott’s income, for the young personto suffer a drop of support in leaner years but then in higher earning income years, have that support reduced on the justification that theamount is more than the young person needs.

The needs of LE, including the higher level of discretionary expenses, as noted above,

should be met consistently. [ 108 ] With respect to

section 3, the child support will be calculated pursuant to Mr. Elliott’s Guideline income for each year as set out in Scenario B, on the basis of the Table (Table amount for the first $150,000 plus a percentage over $150,000). [ 109 ] Ms. Irving also testified that Mr. Elliott attempted to pay some small amounts of child support in 2017 and 2018 but she refused to accept these amounts. This was ill advised. Child support is the right of the child and even if the amount was insufficient, she should have accepted it with clear communication to Mr.

Elliott that even though she was using the child support, she did not agree that it fulfilled his child support obligations. It would not be appropriate to deduct these amounts from the amount of child support owed as the child support does not appear to have been ultimately received for the benefit of the child. However, no interest should be tabulated on this amount. What

Section 7 expenses should Mr. Elliott contribute to? [ 110 ] Section 7(2) establishes a guiding principle that

section 7 expenses are to be shared by the parent in proportion to their respective incomes, after deducting from the expense the contribution, if any, from the child. However, this principle is not a fixed or absolute rule: MDL v CR , 2020 SKCA 44 at para 94 . Entitlement, assuming that the expense falls within an enumerated category, and quantum, as well as allocation of

section 7 expenses is a matter of judicial discretion which requires consideration of the unique circumstances of each case: AE v AE , 2021 ONSC 8189 at para 395 . [ 111 ] Ms. Irving claims significant

section 7 expenses, including expenses for private school, ski race fees and equipment, camps, lacrosse fees, as well as fees associated with biking, and travel as related to all of these sports. [ 112 ] Ms. Irving estimates ski fees in previous years were about $20K, anticipating approximately $30K per year going forward. Ms. Irving testified that LE is enrolled in a private school to accommodate his skiing and other sporting talents. Ms. Irving testified that the young person belongs to the cheapest ski club and they make use of a club equipment trade in program to try and reduce costs.

The young person is apparently ranked currently at 12 th for his age group in British Columbia. [ 113 ] Mr. Irving has included the child on his personal health and benefits policy as well as paying for the child to have access to additional benefits over and above his benefit plan. [ 114 ] Ms. Irving admitted that she did not consult Mr. Elliott with respect to

section 7 expenses and did not provide receipts. However, she indicated that Mr. Elliott knew of the activities the child was engaged in and would likely be continuing. [ 115 ] Mr. Elliott testified that he did not pay

section 7 expenses because he was not consulted and although regular phone calls were awarded by the parenting coordinator the parties had engaged, the calls went unanswered. Mr. Elliott maintains that Ms. Irving frustrated his relationship with his son and moved out of the jurisdiction further fundamentally altering his relationship with the child. [ 116 ] Ms. Irving denied interfering with Mr. Elliott’s relationship with LE and stated that once Mr. Elliott started his new family, he lost interest in the child. She said that LE was the one who did not want to talk to his father. [ 117 ] I find that Ms.

Irving’s actions in moving with the child without notice to Mr. Elliott was not conducive to supporting Mr. Elliott’s relationship with his son. However, Mr. Elliott’s failure to contact the child in some manner, however minimal, over the years, focusing instead on his child support battle, shows a significant lack of responsibility towards the child. I accept that even if Mr. Elliott felt he was being thwarted in terms of contact, he knew that there were some

section 7 expenses to be paid and that he has put minimal effort into contacting or maintaining a relationship with his son. Rather he has spent his time and energy trying to reduce his child support obligations even resorting to trying to have Ms. Irving declared a vexatious litigant. [ 118 ] The classification of the expenses as

section 7 expenses was not seriously contested by Mr. Elliott. Indeed, I find that the young person has thrived in participating in the extracurricular activities of lacrosse, skiing, biking, and attending his private school, which accommodates these interests. By all accounts, LE, while always being a thoughtful, kind and easy child, has embraced these opportunities and is developing into an ambitious young person with goals of opening a bike shop and coaching.

I find that these extra curricular expenses are a necessity in relation to the child’s best interests, taking into consideration the reasonableness of the expense in relation to the means of the spouses and the family’s spending pattern, which included some of these interests prior to the separation. [ 119 ] However, my decision regarding who is responsible for these

section 7 expenses rests, for the most part, on the terms of the Settlement Agreement dated March 20, 2012. The parties agreed that neither party would incur any nonessential

section 7 expenses for the child, the cost of which he or she expects the other party to share without the prior knowledge and consent of the parties or a Court Order [para 7.5]. This provision is somewhat softened by a subsequent provision in the Settlement Agreement which also states that they recognize that the

section 7 expenses of the young person will change over time and that each party shall be required to pay and will pay his or her portion of any and all sharable

section 7 expenses as and when such expenses arise [para 7.7]. [ 120 ] It is undisputed that Ms. Irving did not consult or provide any notice to Mr. Elliott regarding expenses for the child for skiing, lacrosse, biking, private school or other potential

section 7 claims from 2017 onwards. A quick email to Mr. Elliott asking for permission was all that was required to meet Ms. Irving’s end of the bargain and clearly bring those extra

section 7 expenses into consideration. This was so even if Mr. Elliott was not engaged with the child and the mother anticipated that the father would not pay. [ 121 ] I find this lack of consultation is significant and accordingly, Mr. Elliott is not directed to contribute to the retroactive cost of the private school or biking. [ 122 ] However, skiing was an activity that the child participated in when the family was together. Similarly, Mr. Elliott knew the child was engaged in lacrosse. While Mr. Elliott did not give permission for the ski interest to be paid to the significant amount of $20K

annually, there would have been an expectation on his behalf that some form of skiing was going to continue. Given that these activities were either anticipated or known, Mr. Elliott also had some responsibility to try and initiate contact with Ms. Irving to discuss these expenses. [ 123 ] I find that Mr. Elliott should pay a portion of

section 7 expenses towards the lacrosse, ski fees, equipment, registration, and travel for each year the child participated in either lacrosse or skiing. This amount is also consistent with the expectation that Mr. Elliott would be responsible for some

section 7 expenses; he agreed to pay $425 monthly for

section 7 child care expenses as outlined in the Settlement Agreement. He also would have recognized pursuant to provision 7.7, that the nature and extent of

section 7 expenses for the child would change and likely increase over time. [ 124 ] It is trite law that child support is the right of the child: RNJ v NDJ , 2021 ABQB 85 at para 14 ; AHBG v CAG , 2019 ABQB 177 at para 79 . However,

section 7 expenses are for the most part discretionary. In these circumstances, where the parties have agreed that they will consult with each other and give notice of

section 7 expenses, if they fail to do so, they risk not being able to fully claim those expenses. Ms. Irving’s responsibility for child support, how

section 7’s should be apportioned, and Mr. Irving’s status as in loco parentis [ 125 ] Section 19(1) (

a) of the Guidelines allows the court to impute a spouse’s income if the spouse is intentionally under-employed or unemployed, with exceptions, including the “health needs of the spouse.” Even though Ms. Irving is the primary parent, her income is still relevant to

section 7 expenses. [ 126 ] In Peters v Atchooay , 2022 ABCA 347 , the Alberta Court of Appeal set out the general framework at para 60 as follows: 1. Is the parent in question intentionally under-employed or unemployed? 2. Do the listed exceptions to imputation in s 19(1)(

a) apply? 3. Should judicial discretion to impute income be exercised? [ 127 ] The exemptions are not automatic or permanent, and their availability depends on the circumstances : Spring v Spring , 2022 ABCA 19 at para 18 . [ 128 ] Ms. Irving and the Mr. Irving have two other younger children. Ms. Irving was diagnosed with breast cancer in 2018 which required two mastectomies and reconstruction surgery. She has decided to stay out of the workforce, given the risk of reoccurrence, in order to maximize her time with the children.

I find this is a reasonable position from 2018 to date, and meets the requirements as set out by in Peters , 2022 ABCA 347 at paras 60 , 92. [ 129 ] For the year 2017, however, there was insufficient evidence to support that Ms. Irving was unable to contribute to the support of the child through

section 7 expenses. I acknowledge that she had two very young children with her new husband in 2018. However, Mr. Irving gave evidence that they have a traditional type of marriage with Ms. Irving choosing to stay home. In considering these circumstances, I find that a small amount of income should be imputed to Ms. Irving for the year 2018, for the purposes of

section 7 expenses. This income will be calculated at minimum wage for 30 hours per week. Additionally, for 2020, Ms. Irving reported line 150 income in the amount of $124,598.50 representing taxable capital gains from the sale of the Arizona vacation property, which was previously a matrimonial asset. I accept this to be her guideline income for 2020. [ 130 ] I do find that Ms. Irving should have provided additional more fulsome disclosure with respect to the Arizona vacation rental property.

She testified that any income from the rental was nil due to repairs that had to be undertaken before the sale of the property, and she provided her income tax forms. However, I find, given this litigation, and the extensive

section 7 expenses claimed, that additional documentation should have been provided. [ 131 ] I have taken all of the above into consideration and find that for the years 2017 Mr. Elliott should be responsible to pay $3200 (representing the time frame of July 1, 2017 support through to December 31, 2017) and $5000 for the year 2020 towards

section 7 expenses. I recognize that these amounts are not proportional to the parent’s incomes. However, given the conflict between the parties and my findings above, I find this amount to be fair and am exercising my discretion to direct this set amount. [ 132 ] For all other years, Mr. Elliott should pay a yearly amount of $7500 towards LE’s

section 7 expenses towards a portion of the skiing costs and lacrosse. Any amount over and above that for skiing and other

section 7 expenses such as private school and enduro biking should be absorbed by Ms. Irving. [ 133 ] The child’s stepfather, Mr Irving, is a legal guardian to LE. As pointed out by counsel for Ms. Irving, Section 21(3) of the Family Law Act , SA 2003, c F-4.5 states: 21(3) A guardian who is neither a parent of the child nor a person standing in the place of a parent referred to in

section 48 has no legal duty to support the child from the guardian’s own financial resources. [ 134 ] However, in FJN v JK , 2019 ABCA 305 the Court of Appeal noted that the trial judge considered a stepparent’s position in analysing the overall standard of living of the parties, but she failed to consider stepparent’s income to calculate support. The Court found the stepparent should have been permitted to give evidence but found the error did not materially affect the outcome, because the

stepparent’s income would have had a marginal impact in the case: [ 21] The trial judge made no reference to s 20(3)(

a) and s 21(5) of the Family Law Act , SA 2003 c F-4.5 which imposes obligations on guardians, of which RN is most likely one. She did refer to s 49 of the Family Law Act , in passing, but not in the context of its policy statement, along with s 47, that every parent (and in this instance RN is the only father the child has ever known) has an obligation in law to provide support for his child. ......... [23] In her view, RN had been a ‘volunteer’ to look after the child in the years since birth.

In light of the Family Law Act , the trial judge’s characterization of RN’s position in that respect reflects reviewable error. RN is clearly in loco parentis to the child. [ 135 ] The commentary in FN supports the position that a person who stands in loco parentis would have an obligation to provide support for this child. [ 136 ] The parties consented to Mr. Irving being a legal guardian to LE on January 10, 2023. Mr. Irving gave evidence that he has been a part of LE’s life since 2005, he considered LE as a son, and testified easily as to LE’s interests and character traits. Mr.

Irving clearly loves LE and is committed to his well being. Mr. Irving testified that he has supported LE through the family resources for LE’s ski racing, biking and private school and that this was necessary given the lack of consistent child support payable by Mr. Elliott. [ 137 ] The evidence appears to be quite strong that Mr. Irving is standing in loco parentis to LE, and as the main income earner in Ms. Irving’s household during the 2017 to 2023 years, he has significantly contributed not only to LE’s

section 3 support, but also to

section 7 expenses. This has allowed LE to attend a private sports school and engage in many of his expensive activities and hobbies. Mr. Irving, to his credit, has demonstrated his commitment to LE through this financial, not to mention emotional support, all without court direction. [ 138 ] I find this support to be sufficient when considering the totality of the circumstances. These circumstances include the tremendous amount of litigation brought to bear on the child support issue to date, and the strong evidence that the Mr.

Irving appears to be in loco parentis to LE but also acknowledging the lack of an application to declare the Mr. Irving in loco parentis , which would have allowed Ms. Irving an opportunity to provide evidence or make fulsome argument on this point. Conclusion and Direction [ 139 ] In closing written submissions, Mr. Elliott requested leave to submit new evidence alleging procedural irregularities which occurred prior to the trial, and that he will be providing these documents by formal letter to the Associate Chief Justice. He also intends to challenge the previous rejection of his application to have Ms.

Irving declared a vexatious litigant by Justice Rooke on June 9, 2021. In other words, Mr. Elliott anticipates further litigation by him whatever the outcome of this decision. This despite testifying that the legal battle has destroyed his family and that he has been personally broken. In that regard, this decision ends where it began. Mr. Elliott cannot get past what has occurred to date and remains preoccupied on what he perceives as injustice, instead of focusing on the support that should be paid and a relationship with his son. [ 140 ] I reject his request to provide new evidence.

Certain irregularities were already brought to my attention and I have dealt with them in this decision. Other irregularities perceived by Mr. Elliott occurring prior to the trial should have been brought by way of an appeal. [ 141 ] In sum, I direct as follows: • Mr. Elliott’s guideline income will be as set out in Scenario B in the Expert report for the years 2017-2022 and child support payable pursuant to the Table amounts.

For the year 2023 and going forward, however, the parties will use the prior year’s guideline income, with standard fulsome disclosure, including disclosure in accordance with Cunningham , as of May 30, in each year and then readjusted for any increase or decrease, such adjustment to be paid or repaid no later than June 30 of each year. • If an expert is required for the years 2023 going forward, the parties are to agree upon and retain a joint expert, with the cost to be divided 75 percent to Mr. Elliott and 25 percent to Ms. Irving. Given Ms.

Robar’s involvement in the matter to date, she is likely the least expensive option in terms of setting Mr. Elliott’s income in accordance with this decision. If the parties cannot agree on a joint expert, the parties may apply to the Court for further direction. The expert’s conclusion may be challenged with any resulting cost consequences awarded by the hearing Justice at the time of the challenge. Given the history of this litigation, I understand that there is a real likelihood that there may be ongoing problems with assessing Mr. Elliott’s income. However, given Mr.

Elliott’s business structures, there is no easy way to calculate child support that appropriately considers the amount of money Mr. Elliott has available to pay child support. •

Section 7 expenses will be paid by Mr. Elliott in the amount of $3200 for 2017, and in the amount of $5000 for 2020. For all other years, Mr. Elliott is directed to pay the flat rate of $7500 yearly towards

section 7 expenses. • Ms. Irving is responsible for any

section 7 expenses over and above the amounts payable by Mr. Elliott from July 1, 2017 through to December 31, 2023. • Mr. Elliot should be credited for any child support paid throughout the years 2017- to date. • Ms. Irving may seek additional

section 7 costs over and above the $7500 for 2024 onwards provided she consults with Mr. Elliott about these fees and provides appropriate supporting documentation. • Interest on the above outstanding amounts of adjusted child support is payable pursuant to the Judgment Interest Act , RSA 2000, c J-1 [ 142 ] Costs may be spoken to in writing accompanied by draft bill of costs no later than November 30, 2023.

Heard on the 19 th day of June, 2023 to the 23 rd day of June, 2023. Dated at the City of Calgary, Alberta this 2nd day of November, 2023. Janice R. Ashcroft J.C.K.B.A. Appearances: Ashley Wilson, Walsh LLP for the Defendant/ Applicant Vincent Orrin Elliott, Self-represented litigant