Monilaws v Monilaws, 2022 ABKB 652

Court of King’s Bench of Alberta Citation: Monilaws v Monilaws, 2022 ABKB 652 Date: 20220930 Docket: 4803 161818 Registry: Edmonton Between: Katharine Margaret Monilaws Plaintiff/Applicant/Cross-Respondent - and - Roland Raymond Monilaws Defendant/Respondent/Cross-Applicant _______________________________________________________ Reasons for Decision of the Honourable Justice A. Loparco _______________________________________________________ Introduction [ 1 ] Katherine Margaret Monilaws, now Wittingham, (the “Wife”) and Roland Raymond Monilaws (the “Husband”) were married on August 19, 2006.

They separated on March 1, 2012 and were divorced pursuant to a Divorce Judgment and Corollary Relief Order granted February 18, 2016 (the “Divorce Judgment”). The parties have two children, who are aged 12 and 19 and both still children of the marriage.

[ 2 ] In this Application and Cross-Application, the parties raised a number of issues, the most important being the Husband’s payment of spousal support, the Husband’s Guideline Income for the purposes of child support payments, and whether orthodontics for the eldest child were a valid s 7 expense. [ 3 ] After reviewing the materials and hearing submissions from counsel, I conclude that there has not been a material change in circumstances to allow a variation in spousal support. As well, the Husband’s Guideline Income for 2018-2020 should be determined based on the report by Cameron W.

Brinkman, CPA, CA, CBV, ICD.D (the “Brinkman Report”), and the Husband’s 2021 tax information should be forwarded to Mr. Brinkman to determine his 2021 Guideline Income. Finally, the orthodontics for the eldest daughter are a reasonable and necessary s 7 expense. Procedural Background Minutes of Settlement [ 4 ] On July 16, 2015, the parties entered into Minutes of Settlement (the “Minutes”).

In the Minutes, the parties agreed that the Husband would pay s 3 child support, and the parties would each pay their pro rata share of s 7 childcare costs based on a Guideline Income for the Husband of $91,846.00 and a Guideline Income for the Wife of $53,045.00. [ 5 ] In addition, the parties agreed to pay their pro rata share of any other reasonably supportable s 7 expenses, and either party was entitled to bring a Court application to determine any expense the parties could not agree on.

As an exception, the parties agreed that the cost of their eldest daughter’s enrollment at Vimy Ridge Academy would be a reasonable s 7 expense, and they agreed to split the cost of her tuition equally. [ 6 ] In terms of spousal support, the parties agreed the Husband would pay the Wife a lump sum amount of $60,000.00. The sum became due on July 1, 2014, per a previous agreement. However, since the Husband was not able to pay the sum at that time, interest accumulated at a rate of 5% per year and would continue to do so if the Husband did not pay the full amount by August 1, 2015.

The Minutes permitted the parties to set terms for the payment of the lump sum amount by exchanging “with prejudice” letters between their counsel. “With Prejudice” Letter [ 7 ] On July 24, 2015, the parties amended the Minutes with respect to spousal support through a letter signed by counsel for both parties (the “Amendment”). In the Amendment, the Husband agreed to make monthly payments of $700.00 against the remaining lump sum amount and any accrued interest, paid in two parts on the 5 th and 20 th of each month.

The Amendment also reserved to the Husband the right to prepay the full balance owing at any time. Divorce Judgment and Corollary Relief Order [ 8 ] On February 18, 2016, the parties obtained a Divorce Judgment and Corollary Relief Order. The Divorce Judgment adopted the terms of the parties’ Minutes of Settlement with respect to s 3 and s 7 child support payments.

With respect to spousal support, the Divorce Judgment incorporated only the requirement for the Husband to pay a lump sum amount of $60,000.00. 2020 Variation Order [ 9 ] On February 13, 2020, the parties obtained a Variation Order (the “2020 Variation Order”) from Jerke J. As part of the Order, the parties agreed, on a without prejudice basis, that the Husband had a Guideline Income of $80,606 and the Wife had a Guideline Income of $58,500.

They also agreed that child support would be paid based on these figures, subject to further review and adjustment. [ 10 ] The 2020 Variation Order also made specific provisions for the payment of the children’s s 7 expenses relating to enrollment in various sports programs. In addition, the Order set out that each party would pay 50% of any other reasonably supportable s 7 expenses, provided that, for any expense over $300, the party incurring the expense would first confirm the agreement of the other party, who would not unreasonably withhold that agreement.

Present Applications [ 11 ] On April 12, 2022, the Wife filed an Application asking for: • Payment of the lump sum spousal support or, in the alternative, payment of the lump sum amount according to the payment

schedule in the Amendment to the Minutes of Settlement plus an additional amount; • Determination of the Husband’s Guideline Income for 2018, 2019, and 2020 based on the Brinkman Report; • Imputation of the Husband’s 2021 Guideline Income based on an average of the previous 3 years; • Payment of s 3 and s 7 child support arrears as a lump sum or, in the alternative, a monthly payment of $500; • Payment of ongoing s 3 child support based on the Husband’s determined Guideline Income;

• A declaration that orthodontics and post-second tuition are valid s 7 expenses, with dispensation of the need for consent for theseexpenses going forward; • Solicitor-client costs; and • Reimbursement of costs of the Brinkman Report. [12] On April 28, 2022, the Husband filed a Cross-Application asking for: • Termination of spousal support payments, effective January 1, 2018; • A requirement for either party to seek the written consent of the other before incurring any s 7 expense with an annual cost of$300.00 or more; • Full financial disclosure from the Wife; and • Solicitor-client costs.

Issues [13] At the hearing of this Application and Cross-Application, the parties advised me that they would not be arguing any issuesrelating to the eldest daughter’s post-secondary tuition. The parties also agreed that the Brinkman Report income numbers should beused to determine the Husband’s Guideline Income for 2019 and 2020 and that the Husband’s financial disclosure for 2021 should beforwarded to Mr. Brinkman to determine his 2021 Guideline Income. [14] As a result, the issues on this Application and Cross-Application are:

a) Can the lump sum spousal support amount be varied on account of a material change in circumstances and payments cease as ofJanuary 2018?

b) What should the Husband’s Guideline Income be for the year 2018 for the purpose of calculating child support arrears?

c) Are orthodontics expenses reasonable and necessary s 7 expenses? Specifically, is the Husband obligated to share the cost ofbraces for the eldest child? Analysis Issue A: Spousal Support [15] The Husband asks the Court to vary the amount of spousal support awarded in the Divorce Judgment and to cease all spousalsupport payments retroactive to January 1, 2018, or, in the alternative, to cease payments going forward.

The Husband argues there hasbeen a material change in circumstances that justifies a variation in spousal support, given the significant drop in his income due to thepandemic. [16] In response, the Wife argues that there is no authority to vary the amount of spousal support set out in the Minutes and that thesubsequent Amendment, which permitted monthly payments with interest, was solely for the Husband’s benefit and provided a financialincentive for him pay the full lump sum if possible.

Moreover, she contends that the Minutes would not have permitted her to vary thespousal support payment in the event his income increased. [17]

Section 17 of the Divorce Act, RSC 1985, c 3 (2nd Supp) allows for variation of any support order, whether lump sum orperiodic: ss 15.2(1), 17(1), 17(3). To vary a support order, the Court must be satisfied that there has been a material change incircumstance.

Specifically, s 17(4.1) of the Divorce Act provides: Before the court makes a variation order 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 lastvariation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [18] In LMP v LS, 2011 SCC 64 [LMP], the Supreme Court confirmed that the appropriate test for a material change incircumstance is set out in Willick v Willick, (SCC), [1994] 3 SCR 670 [Willick].

Specifically, under the Willick analysis,the Court must find that there has been “a change that, ‘if known at the time, would likely have resulted in different terms’”: LMP at para32. What amounts to a material change will depend on the actual circumstances of the parties at the time of the original order: ibid atpara 34.

The subsequent conduct of the parties may provide indications as to whether they considered a particular change to be material:ibid at para 35. [19] According to the Supreme Court in LMP, even where an order is based on an agreement between the parties, the thresholdvariation question is the same: at para 36.

Nevertheless, the original agreement is useful as an indication of what “future circumstances”were within the contemplation of the parties and, thus, offers insight into what kind of change would or would not have resulted indifferent terms: LMP at paras 38-39. [20] In this case, the Divorce Judgment includes a lump sum spousal support payment of $60,000.00. In the

preamble to theDivorce Judgment, the Husband agreed to waive any claim for spousal support and affirmed that he had independent legal advice. The

Wife agreed to waive any spousal support beyond the lump sum payment and also affirmed that she had received independent legal advice. [ 21 ] The Divorce Judgment was based on the Minutes reached by the parties, although the Divorce Judgment did not incorporate the interest rate, or the payment

schedule set out in the Minutes and the Amendment to the Minutes. The

preamble to the Minutes indicates that the parties had received full financial disclosure and independent legal advice about the alternatives to the settlement and its pros and cons. The

preamble also confirms the Minutes were intended to be a full and final settlement of all matters dealt with in them. [ 22 ] In LMP , the Court explained that it is necessary to look at the circumstances of the case to determine if a statement of finality is effective (at para 42): Ultimately, courts are tasked with determining if a material change of circumstances has occurred so as to justify a variation of a s. 15.2 order under s. 17 .

The analysis is always grounded in the actual circumstances of the parties and the terms of the s. 15.2 order; what meaning a court will give any general statement of finality found in an order will be a question to be resolved on that basis. As we have explained, in some situations, the agreement incorporated into the order may help shape what is meant by a “material change of circumstances”. Where a s 15.2 order deals with a specific change, it assists courts by answering the Willick inquiry through its terms.

Conversely, when the order is general, or simply purports to be final, these less specific terms provide less assistance to courts in answering the Willick inquiry. Sometimes, in such cases, the circumstances of the parties may be such that courts will give little weight to a general statement of finality and conclude that a material change exists.

However, at other times in such cases, the circumstances of the parties may also be such that the courts will give effect to a general statement of finality and conclude that a material change does not exist. [ 23 ] Here, the Minutes and the Divorce Judgment both show a clear intention for a final settlement of spousal support. Both the Husband and the Wife waived the right to any further claim for spousal support, and the Husband’s waiver of any spousal support claim is “notwithstanding any subsequent change in the circumstances of the husband, no matter how catastrophic or unforeseen”.

Under the Minutes, the Wife would not be entitled to apply for an increase in spousal support, so it stands to reason the Husband is not entitled to apply for a decrease. [ 24 ] Moreover, from the initial agreement made in 2014, through to the Minutes signed in 2015, the parties contemplated the fact that the Husband was, and may continue to be, unable to pay the lump sum. Therefore, an interest rate was set, and the parties reserved the right to come up with a payment plan, as they did in the Amendment to the Minutes.

From this, it is clear that the parties foresaw that the Husband might not be able to pay the lump sum immediately. Instead of allowing a change to the amount of spousal support, they set out provisions allowing the parties to come up with a payment plan, which shows they did not intend to allow a change in the total amount owing. [ 25 ] As well, the Husband’s conduct after the Divorce Judgment shows that the lump sum represented a final amount. Specifically, when he took the position that he was unable to pay spousal support in July 2017, the Husband reduced the amount he was paying.

He did not challenge the overall amount or bring a Court application to vary the amount of spousal support. Hence, his subsequent conduct suggests that he understood he was making payments towards a set final amount; he adjusted his payments rather than seeking to alter the total amount owing. [ 26 ] It also bears mentioning that the jurisprudence has established that a lump sum payment is, by its very nature, intended to provide a final settlement of spousal support.

In Unterschultz v Clark , 2022 ABQB 167 , Lema J provided a review of the existing jurisprudence and concluded that lump sum awards are intended to create a clean break, prohibiting reliance on any “downstream” changes: at paras 31-32. This was also the conclusion reached in Purich v Purich , 1999 ABQB 212 , where Veit J held: ... Ms. Bates says that there is a difference in kind between lump sum support and periodic support.

The main difference between them from a litigant’s perspective is that a lump sum award of spousal support creates virtually insurmountable barriers to future variation whereas periodic support can be relatively easily varied. I accept Ms. Bates’ position: there is an important difference in kind between a lump sum payment of spousal support and a periodic payment.

That difference is illustrated by the differences between s.15 and s.17 of the Divorce Act and can be summarized in this way: in a periodic award, the court retains jurisdiction to modify its award, if necessary and appropriate, to meet changing circumstances, whereas, it will only be in exceptional circumstances that a court will re-open a closed spousal support award . (at paras 47-48 [emphasis added]). [ 27 ] In response to this, the Husband argues that the lump sum spousal support payment was converted to a periodic payment when he was unable to pay the balance owing by August 1, 2015, per the original Minutes.

He further argues that the parties merely labelled the spousal support as a lump sum to allow the Wife to avoid taxes. [ 28 ] I do not think that it changes anything that the parties agreed to a lump sum spousal support payment to allow the Wife to avoid paying taxes on the spousal support. This intention appears directly in the Minutes.

Further, the Minutes provide that if the CRA should at any point treat the monthly payments as taxable income to the Wife, the Husband will only be credited for the after-tax amounts. [ 29 ] In this case, I think it is especially important that the Divorce Judgment only included a lump sum amount and did not incorporate the payment plan agreed to by the parties in the Minutes and the Amendment to the Minutes.

On its own, this demonstrates that the spousal support is a lump sum amount and not a periodic payment. [ 30 ] Even then, it is inaccurate to describe the payment plan reached between the parties as having the effect of turning a lump sum payment into periodic payments. It is clear from the Minutes that the parties were able to amend the terms to “confirm arrangements for the orderly retirement of the balance”. In other words, the payment was against the lump sum amount. Similar language is used

throughout the Amendment, which speaks to repaying the balance owed to the Wife. [ 31 ] I also take note of the fact there are no variation provisions in either the Minutes or the Divorce Judgment, which strongly suggests that the parties did not intend for the spousal support lump sum amount to be varied. As well, the very fact there is an interest rate specified in the Minutes and the Amendment makes it clear the payment was towards a lump sum.

In other words, there would not be any interest on a periodic payment. [ 32 ] Finally, periodic payments also do not have an end date that is determined by reaching a total dollar sum paid. In this case, while the spousal support payments were made according to a monthly payment plan, the plan was set to achieve full payment of a lump sum amount, plus interest.

This does not have the effect of changing a lump sum payment into a periodic payment; the Minutes allowed for a payment plan, nothing more. [ 33 ] On the record before the Court, I find that there is not a material change in circumstances, given the parties’ expectations when they obtained the Divorce Judgment. I therefore decline to vary the amount of spousal support owed by the Husband. Issue B: 2018 Guideline Income [ 34 ] The Wife argues the Brinkman Report is the best evidence of the Husband’s Guideline Income for 2018.

The Husband argues that his 2018 Guideline Income was set in the 2020 Variation Order by agreement of counsel, and he is entitled to rely upon that agreement. [ 35 ] In my view, the 2020 Variation Order does not put forward any sort of final determination of the Husband’s Guideline Income. To the contrary, the

preamble of that Variation Order explicitly states that the Guideline incomes are “agreed to on an expressly ‘without prejudice basis’”.

Further, paragraph 2(b)(vii) of Jerke J’s Order provides that the child support orders in paragraph 2(b), which include s 3 child support based on the parties’ Guideline Incomes, are “subject to further review and retrospective adjustment and any issues regarding same are adjourned sine die and subject to rescheduling if new or additional relevant evidence is obtained.” As such, I am entitled to adjust the child support owing based on the additional relevant evidence that was presented at this hearing, being the Brinkman Report. [ 36 ] The Husband argues that it would be unfair to change his Guideline Income and that he was entitled to rely on the 2020 Variation Order, given the factors set out in DBS v SRG , 2006 SCC 37 [ DBS ].

However, the Supreme Court recently adjusted the framework for retroactive variation of child support in Colucci v Colucci , 2021 SCC 24 [ Colucci ], and now the DBS factors are no longer considered when deciding whether retroactive support should be awarded: Colucci at para 6 . Instead, the DBS factors only inform the question of how far back retroactive support awards should go, which is an issue the Husband did not raise in this Application. [ 37 ] In any event, it is clear that the Guideline Incomes used in Justice Jerke’s Variation Order were interim and subject to adjustment, and the Husband knew that.

I do not agree that it would be unfair to vary the retroactive child support on account of his expectation that he would pay based on an amount that was lower than the income he actually earned. Child support is always the right of the child and is the core consideration to which all other rules and principles must yield: Colucci at para 46 . As a result, I direct that child support arrears be adjusted using the Brinkman Report’s number for the Husband’s 2018 Guideline Income. Issue C:

Section 7 Expenses [ 38 ] The Wife asks for the Husband to contribute 50% of the expense of the eldest daughter’s orthodontics. The Wife argues that the expense is both reasonable and necessary. [ 39 ] In response, the Husband argues that the issue is res judicata , because it was raised at the hearing that resulted in the 2020 Variation Order. He further argues that the expense was not reasonable given the parties’ financial situations and that the expense is not necessary, because it is only cosmetic and not medically necessary.

The Husband also raised the issue of whether the Wife gave proper notice of the expense as required by the 2020 Variation Order. He argues that it is unfair for the Wife to ask for payment almost 5 years after she first raised it. [ 40 ] The Husband raises several different arguments, so I will deal with each of them separately. I will start with the Husband’s arguments based on the 2020 Variation Order, before turning to the issue of whether the expense is reasonable and necessary.

I will then consider whether it is appropriate to make a retroactive award considering the analytical framework set out in Colucci . 2020 Variation Order [ 41 ] Two of the Husband’s arguments relied on the 2020 Variation Order, and both can be disposed of quickly. [ 42 ] First, the Husband argues that the issue of whether orthodontics are a valid s 7 expense is res judicata , because it was before Jerke J in the hearing that led to the 2020 Variation Order.

However, the 2020 Variation Order is clear that all the issues that came before the Court were adjourned sine die , subject to anything in the Order: clause 13. Orthodontics were not dealt with in the Order. As such, the issue was adjourned sine die . In other words, it is not res judicata , because it was not previously decided. [ 43 ] Second, the Husband argues that the Wife did not follow the terms of the 2020 Variation order when she got the braces for the eldest daughter without first obtaining his consent.

Quite simply, the braces were applied in 2018, which is before the Variation Order was granted in 2020. The Wife was under no obligation to follow the terms of an order that did not yet exist. Instead, in 2018, the parties were under the terms of the Divorce Judgment, which gave them the right to bring an application to determine any expense the parties could not agree on. In this instance, the Wife was entitled to bring an application for s 7 expenses.

Reasonable and Necessary [ 44 ] Under s 7 of the Federal Child Support Guidelines , SOR/97-175 , the Court may award child support for expenses for orthodontic treatment, “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”: s 7(1)(c). [ 45 ] With respect to the necessity of orthodontics for the eldest daughter, the Wife relies on the letter from the orthodontist, Dr.

Neal Palmer, dated December 12, 2017, which outlines the risks of not proceeding with braces—i.e., periodontal problems associated with the misalignment and the potential tooth wear. In his affidavit, dated April 28, 2022, the Husband deposes that Dr. Palmer told him the orthodontics were cosmetic and not medically necessary. [ 46 ] I accept that Dr. Palmer’s letter does not say that braces are medically necessary.

However, given the evidence that the braces were recommended to prevent future issues, I accept that the orthodontics are in the child’s best interest and, therefore, necessary in the legal sense of the term. [ 47 ] I further find that the expense was reasonable and within the means of the parties. In Piwek v Jagiello , 2011 ABCA 303 , the Court of Appeal endorsed the factors listed in Bland v Bland , 1999 ABQB 236 at para 24 for determining if an expense is reasonable.

Those factors include: • The combined income of the parties; • The fact the parties must maintain two households; • The proportion of the expenses relative to the combined income; • The debt level of the parties; • Any prospect for decline or increase in the parents’ means in the near future; and • Whether the other parent was consulted prior to the expense being incurred. [ 48 ] In this case, when the expense was incurred, the combined income of the parties was approximately $135,000.

That makes the orthodontics expense approximately 3% of their combined income at the time. [ 49 ] Although the Husband did not agree with the expense, he was fully aware of it. The Wife first raised the issue of braces with the Husband in 2016, two years before they were applied. On the orthodontist’s recommendation, the eldest daughter got braces in 2018. According to the Husband’s affidavit, dated April 28, 2022, the Wife continued to raise the issue in letters that were exchanged between counsel in 2019.

The Wife again raised the issue at the hearing that led to the 2020 Variation Order, even if it was not decided at that time. [ 50 ] I acknowledge that the Husband’s 2021 Guideline Income is likely to be lower than the amounts he has been earning to date and that his business may continue to produce a lower income for him. However, considering the above factors, I find that the orthodontics are a reasonable s 7 expense. Between the two households, the parties had an adequate income to pay the cost at the time it was incurred.

Moreover, the Brinkman Report shows that the Husband’s income was approximately $20,000 higher than previously reported for 2018. As well, a $4500 expense to protect the eldest daughter’s teeth and jaw from wear and other impacts of misalignment is not unreasonable for parents who have incurred more than $20,000/year in expenses to support her participation in elite hockey. [ 51 ] The Husband argues that he discussed the braces with his daughter, explaining that he could only afford his portion of two of her three s 7 expenses – Vimy Ridge Academy, Pandas AAA Hockey, or braces.

He asserts that she chose the Academy and the Pandas. However, while the eldest daughter’s opinions are due respectful consideration, her choice is not determinative of her father’s support obligations. As such, I find that the orthodontics were a reasonable and necessary expense.

Retroactive Payment [ 52 ] The Husband argues that the Wife has waited too long to ask for payment for the eldest daughter’s braces, given that she brought her application nearly five years after first raising the issue with the Husband. [ 53 ] In Colucci , the Supreme Court held that a retroactive support award can be made presumptively back to the date when effective notice was given but no more than three years from the date of formal notice: at para 36.

That said, the Court hearing the application may modify the presumptive time frame based on the four factors set out in DBS : namely, any reason for the delay, the conduct of the payor, the circumstances of the child, and whether the award would cause hardship to the payor ( Colucci at paras 38, 71 ). [ 54 ] In this case, the Wife first raised the topic of braces in 2016. However, I find that her raising the issue in 2016 was merely to share information obtained, since the orthodontist said the daughter was not ready for braces and there was no cost attached.

Instead, I find that effective notice was given when the Wife approached the Husband about the braces in May 2018 before the braces were applied. By that point, the Wife’s evidence shows the orthodontist had said their daughter was ready for braces, and the Wife had told that to the Husband. As well, the orthodontist had provided a price for the braces, meaning the expense was no longer hypothetical.

As such, I find the Husband had effective notice of the s 7 expense by May 2018. [ 55 ] Since the parties agree the issue was raised in the application that led to the 2020 Variation Order, formal notice was given by at least that point. Three years back from 2020 is 2017, so, presumptively, I can extend retroactive payments back until effective notice was given, which includes when the braces were applied in 2018.

[ 56 ] In my view, the four DBS factors do not modify the presumptive time period set out in Colucci . Although a significant amount of time has passed since the Wife first raised the possibility of braces for the eldest daughter, knowledge of the actual expense did not crystalize until 2018, after which time she continued to take steps to advance the claim.

The Husband not only had advanced warning of a potential expense, but he was also advised again of the actual cost before it was incurred, and he was aware that she was pursuing it. [ 57 ] The daughter got braces at the end of May 2018, shortly after the Wife gave the Husband effective notice of the expense. After the daughter got the braces, according to the Husband’s affidavit, dated April 28, 2022, the parties’ counsel exchanged letters discussing the issue through 2019. Then, in September 2019, the Husband filed an application to the Court to deal with a number of issues, including 7 expenses.

At the Hearing, the Wife raised the issue of orthodontics, which resulted in the 2020 Variation Order and the sine die adjournment of the issue. The parties returned to Court about a year later and, on February 12, 2021, they obtained an Interim Without Prejudice Consent Order that limited the Husband’s child and spousal support payments for 9 months from March 2021 to November 2021, in light of the financial constraints he was facing due to the pandemic.

Now, finally, the Wife makes the formal claim for braces as a valid s 7 expense. [ 58 ] I accept that a significant amount of time has passed since the Wife first raised the issue. However, I find that the purpose of raising the issue in 2016 was to share medical information and discuss the potential need only since they did not know the cost, nor whether or when the doctor would recommend that it proceed. They did not incur any actual cost until 2018.

Moreover, on the whole, I do not think the Husband was prejudiced by the delay that followed, and, in some sense, he benefitted from it, given his financial circumstances in 2021. [ 59 ] Considering the other DBS factors, I also do not think the expense would cause hardship to the payor. In comparison with the other amounts being paid by the Husband, $2700 is a relatively low cost. In the result, I find that the presumptive time period set out in Colucci does not need to be adjusted, and the Wife is entitled to a retroactive payment for the cost of the eldest daughter’s orthodontics.

Arrears [ 60 ] I have already determined that the Husband’s Guideline Income for 2018, 2019, and 2020 should be based on the Brinkman Report figures of $99,527, $143,705 and $83,790.

Section 3 arrears should be adjusted accordingly. Moreover, s 7 arrears should be adjusted to include the Husband’s $2,700 contribution to the orthodontics treatment. As I am unable to reconcile the amounts paid directly to Vimy Ridge and to MEP to date and any penalties that may be applicable, I order that MEP recalculate the child and spousal support arrears owed based on my ruling. [ 61 ] As further disclosure that was previously unavailable is now available, I now also direct that the Husband’s 2021 and 2022 income be determined by expert report. If any further disclosure is required by the expert, it shall be provided upon request.

Summary of Orders [ 62 ] In light of the above, I make the following orders: • The Brinkman Report’s Guideline Income amounts are to be used to recalculate s 3 child support arrears for 2018, 2019, and 2020; • Mr. Brinkman is to calculate the 2021 Guideline Income for the Husband, which shall be used to set the ongoing s 3 child support; •

Section 7 arrears are to include $2,700 for orthodontics; • Orthodontics are a s 7 expense going forward and may be incurred if reasonable without the need for advance consent; and • MEP may negotiate an appropriate payment plan with the Husband for the arrears. Costs [ 63 ] Solicitor-client costs are payable to the Wife in accordance with the Minutes of Settlement. [ 64 ] In addition, as the Wife has paid all costs for Cameron Brinkman to complete a Guideline Income Report, I order as part of the costs that the Husband reimburse the Wife all costs paid in relation to the expert and that he will be solely responsible for any further costs.

Heard on the 28 th day of June, 2022 in special chambers. Dated at the City of Edmonton, Alberta this 30th day of September, 2022. A. Loparco J.C.K.B.A. Appearances: Tammy Cameron Cameron & Cameron for the Plaintiff/Applicant/Cross-Respondent Ashley Rickard Jackie Handerek & Forester for the Defendant/Respondent/Cross-Applicant