Vinagreiro v Vinagreiro, 2022 ABKB 678

Court of King’s Bench of Alberta Citation: Vinagreiro v Vinagreiro , 2022 ABKB 678 Date: 20221014 Docket: 4803 168085 Registry: Edmonton Between: Sandra J Vinagreiro Applicant - and - Antonio M Vinagreiro Respondent _______________________________________________________ Decision of the Honourable Justice L.M.

Angotti _______________________________________________________ Introduction [ 1 ] This is an application by Sandra Vinagreiro for variation of both retroactive and ongoing child support from the father, Antonio Vinagreiro, including a determination as to whether the oldest child is still a child of the marriage. [ 2 ] The parties were married on March 5, 1998. They have two children, Renee, now 18, and Giselle, now 16. They separated on November 1, 2010. On May 6, 2014, the parties entered into Minutes of Settlement, dealing with parenting and child support. They

were divorced on December 8, 2014. The Divorce Judgment directed shared parenting on a week on/week off basis and set the childsupport to be paid by Mr. Vinagreiro, which reflected the Minutes of Settlement. Monthly child support was to be paid directly to Ms.Vinagreiro in the amount of $466 and an additional deposit into a Registered Education Savings Plan (RESP) in the amount of $100. [3] In the years following the Divorce Judgment, the relationship between the parties deteriorated to the point where Mr.Vinagreiro cut off all communication with Ms. Vinagreiro.

While he continued to communicate electronically with his children, hisrelationship with them also declined to the point where he was rarely seeing them in person. He also did not pay child support inaccordance with the Divorce Judgment. When Renee was accepted into university, Ms. Vinagreiro determined that child support had notbeen deposited into the RESP for the children as ordered. She commenced an application to address parenting, decision making, andchild support. [4] The parties were directed to a Special Chambers hearing, to deal specifically with ongoing and retroactive child support.

I amnot dealing with any other claims of relief from Ms. Vinagreiro’s application. Therefore, I must determine: 1. Has there been a material change in circumstances since the Divorce Judgment that allows for a variation of child support? 2. If there has been a material change in circumstances, can the child support payable by Mr. Vinagreiro be increased retroactively toMay 1, 2015? 3. Is Renee a child of the marriage, even though she is of the age of majority, because she is attending full time post secondarystudies? If so, what is the child support payable for her? 4.

If there has been a material change in circumstances and considering whether Renee is still a child of the marriage, what is theongoing child support payable by Mr. Vinagreiro? [5] As this is a Special Chambers hearing based solely on affidavit evidence, I am not able to resolve conflicts in the evidence.This is an interim order. [6] For the reasons that follow, there was a material change in circumstances at two points, January 1, 2015 when Mr.Vinagreiro’s income changed and January 1, 2018 when the parenting arrangement changed. Formal and effective notice both occurredon the same date, December 2021.

However, the circumstances of this matter result in the exercise of judicial discretion to awardretroactive child support to May 1, 2015. Renee remains a child of the marriage. The claim for s 7 child support is granted, to be sharedon a proportionate income basis, except for post secondary costs that are based on a different formula. Arrears of retroactive s 9 and s 3child support are set at $69,943.75 and ongoing s 3 child support remains as set out in an Interim Order of January 31, 2022. Preliminary Matter [7] This matter was originally scheduled for hearing on June 6, 2022. On that day, Mr.

Vinagreiro became ill and the matter wasadjourned to September 19, 2022, a date all parties confirmed at the time of rescheduling was convenient. I advised the parties that thematter would proceed on that date with or without all parties. [8] Both parties attended on September 19, 2022 and provided their oral submissions. Two days later, Mr. Vinagreiro reachedout to the Court, seeking to provide further information. At my request , he clarified that he wanted to make further submissions, notintroduce new evidence.

His reasons for such request were: 1) submissions by the Applicant’s counsel were too confusing and too longthat he was unable to remember or respond to them when it was his turn; 2) he was concerned with the time, as he had booked a doctor’sappointment that afternoon; and 3) he could not afford a lawyer and, as a self-represented party, he found it difficult to be prepared forcourt. Ms. Vinagreiro did not take a position on this request. [9] I deny Mr. Vinagreiro’s request to make further submissions. At the hearing, I reserved my decision, so no order has beenentered.

The Rules do not deal directly with a situation after the hearing and prior to any order or judgment being given. Rule 9.13provides for further submissions when an order or judgment has been given, but not entered.

That power is exercised only in exceptionalcircumstances such as procedural irregularity, abuse of process, the need to correct an inadvertent and obvious error, fraud, or thediscovery of new evidence, not for re-argument: Riviera Developments Inc. v Midd Financial Corporation, (ABQB) at para 15-16. [10] While I have the jurisdiction to hear further submissions on this matter, as with Rule 9.13, I find that such jurisdiction shouldbe exercised sparingly and only in exceptional circumstances.

In making that determination, I am mindful of the Canadian JudicialCouncil’s Statement of Principles on Self-represented Litigants and Accused Persons, which states that “judges, the courts and otherparticipants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully presenttheir case, regardless of representation.” While a judge cannot become an advocate for a party, assistance can be provided with respect toprocess and procedure.

However, self-represented litigants have their own responsibility to inform themselves regarding the applicablelaw and procedures, and come to court prepared: Aski Construction Ltd. v Markos, 2017 ABCA 423 at para 17. [11] This is not a situation where Mr. Vinagreiro did not understand the procedure. Court of King’s Bench Family Practice Note 2sets out the procedure. He provided a written response to the Application. He had received the Applicant’s Concise Letter, so that heknew in advance what the arguments would be. Just before oral submissions started on the substantive matters, I advised Mr.

Vinagreiroto listen closely to the submissions of counsel for the Applicant, so that he could respond to issues raised by counsel and address anymatters he wanted to raise. Counsel’s presentation was neither lengthy nor confusing. When starting his oral submissions, Mr. Vinagreirovolunteered that he had not prepared himself for the matter. This despite having an additional two and half months from the Juneadjournment to prepare for a date set for which he was available.

I advised him during his submissions that he would have the time heneeded, and it was not until he confirmed that he was finished, that he advised of a doctor’s appointment later that afternoon. Either hedid not advise the Court when the matter was being rescheduled that he had a doctor’s appointment that might interfere with the new

hearing date or he made the doctor’s appointment later, knowing that this matter was scheduled. [ 12 ] When a litigant does not take responsibility for preparation of their matter or does not ensure that other personal matters do not interfere with their ability to present their case on a date scheduled in accordance with their availability, they have not established exceptional circumstances for the Court to exercise its discretion to permit further argument.

Material change in circumstances [ 13 ] When applying for a variation of a child support order, either ongoing or retroactively, the applicant must establish a material change in circumstances: Divorce Act, R.S.C. 1985, c. 3 (2 nd Supp .), s 17(4).

Section 1 4 (

a) of the Federal Child Support Guidelines, SOR/97-175 establishes that the threshold for such a change is one that would result in a different child support order. Either a significant change in income of some continuity ( Colucci v Colucci , 2021 SCC 24 at para 61 ) or a change to or from a shared parenting arrangement can constitute such a change in circumstances. [ 14 ] Ms. Vinagreiro submits that both have occurred in this situation, such that a material change of circumstances has occurred. [ 15 ] Mr. Vinagreiro’s guideline income in December 2014 was set at $75,642.

Since then, his guideline income based upon his T- 4 slips, with a deduction for the payment of union dues is: 2015 $79,970 2016 $83,078 2017 $81,308 2018 $82,679 2019 $82,578 2020 $81,244 2021 $80,622 2022 $80,622 (as set out in Interim Order of January 31, 2022, based on his final paystub for 2021) [ 16 ] Immediately following the Divorce Judgment, Mr. Vinagreiro began earning $4,500 more in annual income. While it varied somewhat over the years, it consistently stayed at or over $80,000.

This is a significant change in income of some continuity and constitutes a material change in circumstances. [ 17 ] Both parties agree that there was also a change in the parenting arrangement, from shared parenting to primary care with Ms. Vinagreiro. However, they dispute when this occurred. The determination as to when the parenting arrangement changed is important to other issues as well. Ms. Vinagreiro submits that she had primary care of the children since May 2015. Mr.

Vinagreiro submits that the change occurred in the summer of 2018 (I do not accept his oral submissions that it was 2019, which appear to be an error as both his sworn evidence and the finding in the Interim Order state 2018). [ 18 ] Other than Ms. Vinagreiro’s assertion that she had primary care of the children since May 2015, there is little or no evidence of the actual pattern of parenting in 2015 to 2018. Ms. Vinagreiro deposed that the children stayed with their father only a few days per month in 2016. Mr. Vinagreiro disputes this, although his evidence mainly focuses on 2017 and 2018.

The evidence regarding the amount of time the children spent with each parent in 2017 conflicts, with each parent deposing that the children spent substantial time with them and not with the other parent. I am not satisfied that the evidence shows either parent had the children for less than 40% of the time in 2015 to 2017, such that shared parenting had ended. [ 19 ] However, in 2018, both parties agree that Renee resided with the father in February 2018 for several weeks, although the exact length of time was in dispute. The father deposed it was 10 to 11 weeks and the mother deposed it was 6 to 8 weeks.

During this time, Giselle frequently saw her father. After Renee returned to reside with Ms. Vinagreiro, both parties agree that the father had very limited in person time with the children. Shared parenting is assessed on an annual basis, per the Guidelines. Even if I accept Mr. Vinagreiro’s evidence, eleven weeks is only 21% of the year. The additional time he may have had with the children after those months would not have amounted to another 19% of parenting time.

Therefore, I find that the evidence establishes that there was no longer a shared parenting arrangement as of January 1, 2018, as the children were in the primary care of their mother. This is a material change in circumstances. Retroactive Increase in Child Support [ 20 ] The test for determining a claim for a retroactive increase in child support is set out in Colucci , supra at para. 114 . [ 21 ] First, a material change in circumstances must be established. I have already determined this occurred as of January 1, 2015 due to Mr.

Vinagreiro’s change in income and again as of January 1, 2018 due to the change in the parenting arrangement. [ 22 ] Ms. Vinagreiro requests a retroactive adjustment to May 1, 2015. She submitted that the retroactive increase should commence when the shared parenting arrangement ended (which she said was May 1, 2015), as that would automatically result in effective notice because child support would then be based solely upon the non-primary parent’s income. Regardless, she submits that DBS v SRG , 2006

SCC 37 provides that retroactivity should go back three years from the date of formal notice. [ 23 ] There is no presumption or rule of three years retroactivity. Rather, once a material change in circumstance is established, a presumption arises in favour of retroactively increasing child support to the date Ms. Vinagreiro broached the issue of an increase in child support with Mr. Vinagreiro, to a maximum of three years before the date of formal notice: Colucci , supra at para 114 . If such effective notice has not been given, the presumptive date is the date of formal notice.

However, I retain discretion to depart from this presumptive date of retroactivity where the result would otherwise be unfair: Colucci , supra at para 114 . This discretion is guided by the four factors set out in DBS , supra , as further described in Michel v Graydon , 2020 SCC 24 . [ 24 ] The authorities do not support that a change in parenting arrangement that would result in a change in the payment of child support automatically gives rise to effective notice. I need not decide that issue, given the exercise of my discretion below. [ 25 ] Ms.

Vinagreiro provided evidence of communications through the years where she often sought payment of s 7 expenses or complained about a failure to pay any child support. These communications were not specific to whether an increase might be needed or what his current income was. Thus, she did not broach the issue of recalculating child support until she provided formal notice of her intention to seek a retroactive increase until approximately December 2, 2021, with the Notice to Attend Family Docket Court.

Therefore, the presumptive retroactive date would be December 2, 2021. [ 26 ] I now consider the DBS factors to determine whether it is appropriate to depart from the presumptive date of retroactivity.

(1) Is the recipient’s delay in seeking variation reasonable in the circumstances. [ 27 ] Ms. Vinagreiro submitted that her delay is irrelevant, as child support is a debt that is due and payable. Once there was a change in parenting, the resulting change in child support calculation became a debt due and owing, which would not have been unexpected or unforeseen by the father.

Even if her delay is relevant, she submits that it was reasonable. [ 28 ] The Supreme Court of Canada has unequivocally made delay in seeking variation a relevant factor. [ 29 ] Delay may be the result of a lack of access to justice because of a lack of financial resources, or potential intimidation or misleading behavior on the part of the payor. In her concurring judgment in Michel , Martin J spoke of delay in this broader social context, considering issues such as intimate partner violence and access to justice.

She noted that delay is not itself “inherently unreasonable”. [ 30 ] One consideration is the informational asymmetry between the parties. Mr. Vinagreiro was not sharing information with Ms. Vinagreiro about his income, as he did not provide disclosure until January 2022 of his earnings. This asymmetry is tempered by Ms. Vinagreiro’s knowledge of the change in parenting and when it occurred. [ 31 ] The second consideration is the potential intimidation by Mr. Vinagreiro. Ms. Vinagreiro deposed that, over the years, she engaged Mr. Vinagreiro about unpaid s 7 expenses, but he repeatedly pushed back.

In the text messages exchanged, Mr. Vinagreiro commonly threatened that he would engage in inappropriate conduct if she kept asking for payment of child support or withheld the children. Such threats included running over the mother, removing both the mother and the children out of his life, stopping any child support payments, or quitting his job and leaving the country. Some of these threats came to reality in 2018, when he cut off all communication directly with Ms. Vinagreiro, significantly reduced in-person contact with the children, and stopped making child support payments directly to Ms. Vinagreiro.

The father does not dispute that he engaged in such behaviour and that it was inappropriate. [ 32 ] Ms. Vinagreiro did not register the Divorce Judgment with the Alberta Maintenance Enforcement Program, as she feared it would increase the conflict and incite more inappropriate communication from the father to the children. She hoped that he may have put the child support money that was to be directed to her into the RESP accounts instead. When Renee applied to university, Ms.

Vinagreiro accessed the RESP account, to discover neither the full amount of the ordered RESP contributions nor unpaid child support had been deposited. This is when she commenced legal proceedings. [ 33 ] Given Mr. Vinagreiro’s intimidating and misleading conduct and Ms. Vinagreiro’s fear that pursuing the matter would only result in more conflict and harm to the children, I find that the delay in seeking a variation was reasonable.

(2) Blameworthy conduct by the payor [ 34 ] Ms. Vinagreiro submits that the father engaged in blameworthy conduct, through his threatening behaviour and following through on some threats. [ 35 ] I was advised at the beginning of the hearing that Mr. Vinagreiro had resigned from his long-time employment as of July 18, 2022 and he advised Ms. Vinagreiro of his change in employment on August 15, 2022. The parties agreed that I could consider this as if it was in evidence. Ms. Vinagreiro submits that this is simply another threat come true. Mr.

Vinagreiro advised that there were other underlying reasons for his resignation. There was no evidence before me as to the reason for the resignation. Given that Mr. Vinagreiro has not had a fulsome opportunity to explain his resignation, it is not appropriate to make a finding regarding blameworthy conduct because of the resignation.

I will deal with the impact of the resignation later in this decision. [ 36 ] In DBS , supra at para 106 , Bastarache J described blameworthy conduct expansively as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”. [ 37 ] In many cases, the focus is on the failure to disclose actual income as the blameworthy conduct, as such information is within the knowledge and control of the payor. Disclosure is a significant obligation in child support matters. The intention of the payor with respect to disclosure obligations is not important.

What is important is the payor’s actual conduct and its consequences. Mr. Vinagreiro

provided disclosure in January 2022 as directed by the Family Docket Endorsement of December 10, 2021; there is no indication that he provided disclosure on an annual basis as required by the Divorce Judgment during the previous seven years. [ 38 ] Payor conduct may also be blameworthy in other ways. Threats to cut off support or act in ways to the detriment of the children, when pushed to provide court ordered child support, falls well within the definition of privileging the parent’s interests over the children’s right to support. Mr.

Vinagreiro made various threats when his failure to pay child support were raised. He continued to make such threats in the legal action, deposing in his response affidavit that if the Court grants the application, he will simply quit his job. While his recent resignation certainly is suspicious in these circumstances, coming after this threat and shortly before the hearing, I am not prepared without proper evidence to make a finding that his resignation is simply a carrying out of the threat. Even without considering the resignation, his behaviour in this regard has been reprehensible. [ 39 ] Further, Mr.

Vinagreiro failed to pay the court ordered amount of child support, without sufficient explanation. He stopped making payments directly to the mother, made sporadic payments directly to the children, and put limited monies into an RESP. He only paid $82 per month to the RESP as of 2016 on the basis that somehow this would balance out the amounts to each child given their age difference and permit him to be given the benefit of the 7.5% federal government grant. Neither of these are an accurate

interpretation of the Divorce Judgment, which clearly required him to pay $50 per child per month into the RESP. [ 40 ] The evidence of both parties establishes that there has been a significant deterioration in the relationship of the father and children. The thrust of Mr. Vinagreiro’s submissions is that he should not have to pay child support, because he was not able to exercise his parenting time. He alleges this resulted from Ms.

Vinagreiro moving farther away from him (though still in the same city), her withholding of the children so they could maintain her house, and the children creating a toxic environment in his house. As a result, he ultimately told his children that the parenting time was done. I reject his position. The exercise of parenting time (except as it relates to determining what is the actual parenting arrangement) and the parent child relationship are irrelevant to determining child support. [ 41 ] Mr. Vinagreiro did not seek relief from his court ordered child support obligations.

Instead, he engaged in a self-help remedy. This too privileged his interests over his children’s right to a fair standard of support. [ 42 ] Mr. Vinagreiro has engaged in significant, deplorable, and reprehensible blameworthy conduct.

(3) Circumstances of the child [ 43 ] Child support is the right of the child. It is presumed that a child has lost a benefit when the payor parent fails to pay the amount of support required by the guidelines: Henderson v Micetich , 2021 ABCA 103 at para. 62 . Mr. Vinagreiro did not even pay the child support directed by the Divorce Judgment. The mother was left to struggle without the anticipated child support from the Divorce Judgment, let alone the child support that would have been ordered in accordance with the changes in income and parenting.

This would have a direct negative impact upon the children for the last eight years, including impacting the resources available for the children’s post-secondary education.

(4) Undue hardship for the payor [ 44 ] Mr. Vinagreiro sub mitted that he would suffer hardship if the child support is varied. He deposed that he cannot afford to pay the arrears, as he lives from pay cheque to pay cheque and would not be able to meet his bills, but he does not provide any indication of his monthly budget. Mr. Vinagreiro described a long-standing heart condition that he lives with. However, I note that this has not prevented him from working over the years.

He states that he is paying a debt over the next few years, but he does not provide any information as to the reason for the debt or the payments required. He submitted that he has been in financially difficulty for quite some time, but he has not provided any supporting evidence showing his alleged hardship or his attempts to deal with his financial difficulties so that he can meet his child support obligations. [ 45 ] For a payor to suggest that he will quit his job if he is required to pay arrears due to hardship is a wholly illogical submission. Mr.

Vinagreiro even suggested in his oral submissions that he is considering leaving the country, as he no longer wants to work in Canada due to its environment. I find that he simply does not wish to pay child support and will make various threats in an effort to avoid that obligation. This is not the same as undue hardship. [ 46 ] I do not accept that Mr. Vinagreiro is in a position of undue hardship, as a single household making an income of $80,000 or more. This is even more so when he is not even paying the court ordered support based on a lower income and set off under s 9 of the Guidelines .

Child support is the right of the child, and he has failed to meet his obligations for several years; the accumulation of the arrears lies solely at his feet. Any hardship that might arise from needing to pay a significant lump sum of arrears can be dealt with by setting a payment plan. [ 47 ] Based on these four factors, I exercise my discretion to award retroactive child support back to May1, 2015 (the date requested by Ms. Vinagreiro) based on the change in income for a shared parenting arrangement to December 31, 2017 and from January 1, 2018 based on the termination of the shared parenting arrangement.

Child of the Marriage [ 48 ] Renee turned 18 on January 5, 2022. She began full time attendance at Grant McEwan University in September 2021. Mr. Vinagreiro seeks to have her declared as no longer a child of the marriage. [ 49 ] The Alberta Court of Appeal has confirmed the use of the Farden factors in determining when an adult child remains a child of the marriage in relation to schooling, so that the Court may determine what is just and fit in all the circumstances of the case: Miller v Joynt , 2007 ABCA 214 at para. 8-11 . Ms.

Vinagreiro also submitted that additional factors from the Ontario case of Menegaldo v

Menegaldo , 2012 ONSC 2915 should be considered, as done in Doyle v Canning , 2022 ABQB 163 .

I find that the additional factors are simply more in depth consideration of the Farden factors, which expansion I have included in the applicable factors. (1) whether the child is enrolled in a course of studies and whether it is a full-time or part-time course of studies [ 50 ] Renee has been enrolled in full time studies since September 2021, following her high school graduation, and continues to be enrolled in full time studies. (2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance [ 51 ] Renee has sought out financial assistance, in the form of scholarships and grants.

She has also used the monies from her RESP account. (3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan, including the quality, duration and cost of the education plan, or is simply going to college because there is nothing better to do [ 52 ] Renee plans to become a music therapist, so she is taking a course of studies involving both music and psychology. Based upon the invoices provided, it appears that the annual tuition cost is approximately $5,000 per term. Mr.

Vinagreiro takes issue with her plan of studies, submitting she should have gone into an engineering or science program, and he feels that her current course of studies will not lead to a career. He has not provided any evidence of the latter, so this is simply his own opinion. I find that Renee is engaging in a reasonable and appropriate career plan. (4) the ability of the child to contribute to their own support through part-time employment [ 53 ] Renee has a part time position, which she started at the end of high school, working approximately 22 hours per week.

Her hours during the school year are significantly reduced, but not eliminated, so she can concentrate on her studies. She is reasonably contributing towards her own support. (5) the age of the child, as well as the child’s aptitude, experience, abilities and maturity [ 54 ] Renee turned 18 while she was in first year university.

I have limited evidence on her aptitude or abilities prior to entering university and her experience would be limited to high school. (6) the child’s academic performance, whether the child is demonstrating success in the chosen course of studies [ 55 ] Renee is demonstrating success in her course of studies, obtaining mostly A’s or B’s in her classes. (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation, as well as the means, needs and other circumstances of the parents [ 56 ] The parties entered into minutes of settlement in 2014.

They reflect the parents’ plans with respect to post secondary education. In the minutes of settlement, child support would be reviewed if the child turned 18, unless they were unable to become self- supporting due to education. The parties also agreed to contribute to an RESP for the children, which was incorporated into the Divorce Judgment. This establishes that the parents planned to continue to support their children in post-secondary education if the child was unable to be self-supporting. Renee is unable currently to be self-supporting.

Both parents have the means of providing some level of support to Renee and there are no circumstances that would suggest otherwise. (8) whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought [ 57 ] Both the mother and father agree that the Mr. Vinagreiro has seen little of Renee since the summer of 2018, so there was some form of a breakdown in the relationship before she reached the age of majority. However, it was Mr. Vinagreiro who determined that the communication and parenting time would be cut back.

He deposes that there is no communication, they no longer see each other, and there is no connection between him and his children, but that is contradicted by his evidence that he helped Renee become enrolled in her

degree program. The evidence shows that Renee continued to communicate with her father electronically, including normal parent/child discussions about enrolling in university. While the relationship can certainly be described as rocky, Renee has not unilaterally terminated the relationship. [ 58 ] Based on these factors, it is just and fair in these circumstances to conclude that Renee continues to be a child of the marriage and remains so until she has finished or terminated her current degree program. Therefore, child support remains owing for Renee.

I find that s 3 child support is appropriate in the circumstances, given the limited earning ability that Renee has, even with her parttime position, and her continued residence with and financial support from Ms. Vinagreiro. [ 59 ] As well, her post secondary education fees are a s 7 expense. I accept the proposal of Ms. Vinagreiro, that the post-secondary fees shall first be paid from the RESP funds and other financial aid, and any amount remaining would be equally split between Renee, Ms. Vinagreiro, and Mr. Vinagreiro.

Section 7 expenses [ 60 ] Ms. Vinagreiro deposed that Mr. Vinagreiro was aware of and consented to the orthodontic treatment for both children, demonstrated most particularly by payment of part of the cost through his health and dental plan. She also incurred the cost of glasses for both children and paid for it without contribution by Mr. Vinagreiro. His health plan would cover the cost of vision care, to specified maximums. The mother also enrolled the children in extracurricular activities and paid school fees, and the text messages reveal that Ms. Vinagreiro advised Mr.

Vinagreiro that she was incurring costs for such fees and seeking his contribution. He did not contribute. [ 61 ] Therefore, I accept the claim for s 7 expenses as set out in Ms. Vinagreiro’s disclosure statement filed January 14, 2022, with each parent paying their proportionate share. The exception is the post secondary school fees, which were addressed above.

The proportionate share would be: 2015 Father $79,970 71% Mother $32,982 29% 2016 Father $83,078 66% Mother $42,610 34% 2017 Father $81,308 62% Mother $48,899 38% 2018 Father $82,679 56% Mother $64,478 44% 2019 Father $82,578 40% Mother $123,645 60% 2020 Father $81,244 45% Mother $98,297 55% 2021 Father $80,622 42% Mother $111,432 58% 2022 Father $80,622 42% Mother $111,432 58% [ 62 ] Counsel shall calculate the amount of

section 7 expenses on the above basis, from the receipts provided in Ms. Vinagreiro’s Disclosure Statement. Calculation of s 3 and s 9 child support arrears [ 63 ] Child support was payable by Mr. Vinagreiro under first s 9 and then s 3 of the Guidelines from January 1, 2015 to January 31, 2022 in the amount of $79,526, calculated as:

a) Shared Parenting Arrangement 2015 For January to April, as per the Divorce Judgment, $566 per month payable by Father, for a total of $2,264. Then from May 1, 2015: Father $79,970 $1,168 x 8 $9,344

Mother $32,982 $499 x 8 $3,992 Set off $5,352 2016 Father $83,078 $1,215 x 12 $14,580 Mother $42,610 $619 x 12 $7,428 Set off $7,152 2017 Father $81,308 $1,189 x 12 $14,268 Mother $48,899 $708 x 12 $8,496 Set off $5,772

b) Primary parenting with Mother 2018 Father $82,679 $1,209 x 12 $14,508 2019 Father $82,578 $1,208 x 12 $14,496 2020 Father $81,244 $1,188 x 12 $14,256 2021 Father $80,622 $1,178 x 12 $14,136 2022 Father $80,622 $1,178 x 1 $1,178 [ 64 ] While Mr. Vinagreiro resigned from his employment in July 2022, I do not have any information as to his actual earnings in 2022 to that point or his employment prospects for the rest of the year. The Guidelines provide that income is to be determined with reference to the T1 General Form. The Court can consider other information, such as T-4 slips.

Child support is to be based upon the most recent information available to the Court. The last information provided to me is Mr. Vinagreiro’s 2021 income, based on his T-4 slips. That is the income that will be used to set his 2022 guideline income. [ 65 ] Pursuant to the Interim Order, the father was required to pay $1,178 per month as of February 1, 2022. As of September 19, 2022, he should have paid $10,013 under this order. [ 66 ] While Mr. Vinagreiro said that he was not able to confirm the calculations by Ms.

Vinagreiro of the child support payments he made, he has not provided any evidence with respect to those payments. Therefore, Ms. Vinagreiro’s evidence in this regard is accepted. [ 67 ] Mr. Vinagreiro did make some contributions to the RESP account over the years. For the purposes of calculating retroactive child support owing, I will not separate out the RESP funds from child support paid directly. Based on his payments directly to the children, directly to Ms. Vinagreiro, and deposited in the RESP account, as of December 31, 2021, he paid $16,419.25.

I have been advised that he has paid $2,764 total in 2022, again failing to comply with court ordered child support payments. [ 68 ] Therefore, as of September 19, 2022, his arrears in s 3 and s 9 child support are set at $69,943.75. Conclusion [ 69 ] Child support is retroactively increased, based upon Mr. Vinagreiro’s actual annual income and the change in parenting arrangement. As of September 30, 2022, Mr.

Vinagreiro owes child support arrears of $69,943.75 for s 3 and s 9 child support and arrears in s 7 child support (as calculated based on proportionate sharing). [ 70 ] The ongoing s 3 base child support directed in the Interim Order of January 31, 2021 was based on Renee as a child of the marriage. As I have found that she continues to be a child of the marriage, the s 3 child support shall continue on the terms set out in that Order.

He shall also contribute to 1/3 of the costs post-secondary fees, after Renee has exhausted her RESP and scholarships or grants, and his proportionate share of s 7 expenses for Giselle. [ 71 ] As he has ongoing child support obligations, I set a payment plan for his arrears at $500 per month, payable on the 15 th of the month. There will be a stay of enforcement on these child support arrears, provided he makes payments of his ongoing s 3 child support and the payments towards arrears.

However, if he defaults on any of his child support obligations by 30 days, the stay of enforcement will immediately no longer be in force. [ 72 ] Mr. Vinagreiro’s resignation from his employment may impact upon future child support determinations (though I have not made a finding of such impact). Mr. Vinagreiro may apply for a review of child support retroactive to July 2022, but he is required to first disclose his financial information for all of 2022, including his T1 General Form, to Ms. Vinagreiro before such application can be made.

Such an application must be made in accordance with the Rules of Court and applicable Practice Notes . [ 73 ] Counsel for the applicant shall provide a bill of costs and a written submission (limited to two pages) for costs within 30 days of this decision. The Respondent shall provide a written response (limited to two pages) within 2 weeks of receiving the Applicant’s submissions on costs.

Heard on the 19 th day of September, 2022. Dated at the City of Edmonton, Alberta this 14 th day of October, 2022. L.M. Angotti J.C.K.B.A. Appearances: Danielle Collins for the Applicant Antonio M. Vinagreiro self-represented