Mohamud v Abdullahi, 2023 ABKB 371

Court of King’s Bench of Alberta Citation: Mohamud v Abdullahi, 2023 ABKB 371 Date: 2023-07-11 Docket: 4803 168457 Registry: Edmonton Between: Ibado Ahmed Mohamud Plaintiff/Respondent - and - Maktal Dolal Abdullahi Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Justice L.K.

Harris _______________________________________________________ [ 1 ] The Applicant father (the “Father”) brings an application to vary child support downwards based upon a material change in circumstances, being the termination of his employment and subsequently his decision to retire given his age (68) and health.

The Respondent mother (the “Mother”) opposes, saying that although she agrees there has been a material change in circumstances, the Father remains capable of working at least at a minimum wage job and his income ought to be imputed to that amount. [ 2 ] Both parties also agree that I may perform a retroactive adjustment to the Father’s child support payments to January 1, 2021, and that the monthly amount of the Father’s child support payments for 2021 is $2,809.

[ 3 ] The sole issue to be determined is whether any income should be imputed to the Father beginning January 1, 2022, above his reported income. I. Background [ 4 ] The parties were married in 2001 and separated in 2012. They obtained a Divorce Judgment with Corollary Relief in 2015. [ 5 ] There are five children of the marriage. In 2016, the oldest child began living primarily with the Father. The other four children continued to live primarily with the Mother. [ 6 ] The Divorce Judgment provided that the Father was to pay $1,500 per month in child support, plus 100% of all

section 7 expenses based upon the Father’s annual income of $75,452 and the Mother’s annual income of $1,200. [ 7 ] The Father sought no reduction in child support once the oldest child came to live primarily with him. [ 8 ] In 2020, the Mother brought an application for a retroactive and ongoing adjustment to child support. By way of an Order granted October 21, 2020, Friesen J recalculated child support based on

section 8 of the Federal Child Support Guidelines (“ FCSG ”) back to June 2016 based upon the Father’s reported income, which had increased over the years. The Friesen Order declared that the Father was in arrears in the amount of $28,959 for both

section 8 and

section 7 child support and that he would pay ongoing child support of $1,954 per month, plus an additional $300 per month towards the arrears, based upon his annual income of $84,400. [ 9 ] The Father began making child support payments in accordance with the Friesen Order. [ 10 ] In March 2021, the Father was laid off from his position as a system developer with Alberta Health Services. He was given a severance payment of approximately $69,000. His annual income for 2021 was therefore increased to approximately $124,000. The parties agree that the Father’s

section 8 child support for 2021 should be based upon this level of income and amount to $2,809 per month. [ 11 ] The father has not worked since the termination of his employment. He says that he has arthritis that flares up from time to time, and that he has recently been diagnosed with blood clots in his lungs for which he is taking medication. He says that because of his age and health he can no longer work. He is currently receiving income from CPP and his private pension amounting to less than $2,000 per month.

While he acknowledges that his child support payments must increase for 2021 because of his higher income in that year, he says that beginning in 2022 his child support payments should be based upon an annual income of approximately $22,896 arising from his CPP and pension benefits. [ 12 ] The Mother has not worked for many years because of a disability. She has earned minimal income. In 2022, she applied for AISH and was approved. In 2022 she reported a total income of $13,235. She expects her income for 2023 to be approximately $26,000. II.

Test for Imputing Income [ 13 ] The FCSG expressly sets out its objectives, one of which is “to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation”.

The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices: Cowan v Cowan , 2018 ONSC 2495 , at para 30 citing Duffy v Duffy , 2009 NLCA 48 . [ 14 ] The law in relation to the test for when income can be imputed to a party in Alberta changed with Peters v Atchooay, 2022 ABCA 347 , in which a five-member panel of the Alberta Court of Appeal overturned the previous authority in Hunt v Smolis-Hunt . In Hunt , the party seeking to have income imputed to the other had the onus of establishing deliberate evasion on the part of the payor parent.

Peters brought Alberta in line with other provincial authorities and established that the test is one of reasonableness of the imputation under s19(1)(

a) of the FCSG . Section 19(1)(

a) provides: 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse [ 15 ] Peters states at para 60, that a parent is “intentionally under-employed” for the purposes of s 19(1)(

a) when their income is less than they are capable of earning. The factors for earning capacity include qualifications such as age, education, experience, skills and health and other criteria, for example, the availability of work, choice to relocate and other obligations. The Court will also consider whether the under-employment or unemployment is beyond the control of the payor, that is, involuntary, for example, by layoff, reduced hours and termination without cause.

In those circumstances imputation would not be available. [ 16 ] The exceptions, which may avoid imputation are not automatic or permanent, but dependent on the circumstances: Spring v Spring , 2022 ABCA 19 at para 18 , as cited in Peters at para 60. [ 17 ] In the case of a variation, such as here, once a material change in circumstances is established, a person seeking an imputation of income under s 19(1)(

a) has an initial onus to establish an evidentiary basis for the imputation sought. Where a prima facie case for imputation is made out, the onus shifts to the person opposing imputation to defend the actual income claimed: Peters at para 63. The

party opposing imputation must prove on a balance of probabilities that first, the under-employment or unemployment was not voluntary; or second, the under-employment or unemployment is because of one of the s 19(1)(

a) exceptions. If neither of those two factors apply, that party must establish on a balance of probabilities, that their under-employment or unemployment is reasonable having regard for all the existing circumstances: Shumate v Patrick , 2023 ABKB 98 at para 45 . [ 18 ] Peters sets out several principles, three of which are important in this case: 1. General Duty to Work. There is a duty to seek employment where a parent is healthy and can work.

A parent’s limited work experience or job skills do not justify a failure to pursue lower skilled employment or employment in which the necessary skills can be learned on the job. While this may mean a job at the lower end of the wage scale, parents cannot refuse to take reasonable steps to support their children simply because they cannot obtain interesting or highly paid employment. Nor can a high-earning or highly skilled parent refuse employment indefinitely by holding out for employment commensurate with their skills and previous level of earning, job title or seniority. 2.

Earning Capacity Used to Assess Reasonableness. When determining whether to impute income on the basis of under- employment or unemployment, a court must consider what is reasonable in the circumstances. The starting point is the payor’s earning capacity, which is the objective measure by which the reasonableness of the parent’s decision or conduct is assessed. Earning capacity is determined based on factors like age, education, experience, skills, and health of the payor, along with availability of work, the freedom to relocate, and other obligations. *** 3.

Obligation to Support Children is the Overarching Goal. The reasons for under-employment or unemployment must be objectively scrutinized. A parent is required to act in a manner reflective of his or her obligations and cannot be excused from support obligations in furtherance of unrealistic, unproductive or non-remunerative career aspirations. Persistence in unremunerative employment or repeated education initiatives may also entitle the court to impute income.

Parental self-fulfillment is a consideration but does not trump child support requirements. [ 19 ] There are now some post- Peters decisions from this Court which discuss the evidence needed to successfully resist imputation of income. For example, in Shumate , at paras 46 – 48 , Nielson J states: The evidence should focus on the payor’s capacity to earn income at all points in the applicable timeframe: the date of the order in effect, the date of the variation application, and during the years in between for which a variation is sought.

At a minimum, establishing employment capacity includes evidence of payor’s age, technical skills, education, health, work history, and realities of the labour market. As the Court of Appeal stated at para 67 of Peters , under-employment or unemployment due to the payor’s health concerns would generally require medical evidence for the entire duration of time in question. Furthermore, in considering circumstances beyond the payor’s control, the payor must provide evidence of efforts to find alternate employment.

An employment decision that results in a significant reduction of child support needs to be justified in a compelling way. [ 20 ] See also Angotti J’s decision in Ma v Xu , 2023 ABKB 346 at para 60 : Cogent, credible, and objective evidence is required, rather than bare assertions: Peters at para 67. The evidence should focus on the payor's earning capacity, such as age, technical skills, education, health, work history, and the realities of the labour market.

Evidence of efforts to find alternative employment for the entire duration in question is also required. [ 21 ] As a final example, Bercov J states in Hamani v Hamani , 2023 ABKB 360 , at para 93 that, “the analysis requires evidence that is as objective as possible. Bare assertions will not suffice.” III.

Should Income be Imputed to the Father? [ 22 ] In this case, I must look to the reasonableness of the Father’s retirement give his age, education, experience, skills and health, and the fact that he was laid off from his employment. [ 23 ] Being laid off was not a voluntary decision on the part of the Father and was beyond his control. It is to be expected that this event would be followed by a certain period of time during which he would be unemployed.

I must therefore determine what a reasonable time of unemployment would be, and whether his decision to retire instead of finding new employment within that period is reasonable given all the circumstances. [ 24 ] Part of this determination lays in the nature of the employment that could be expected of the Father at this stage of life, given his health, education, training, skills, etc. [ 25 ] The Father swore an Affidavit on July 11, 2022, in which he addresses the reasons why he does not currently work. He was 67 at the time he swore his Affidavit and is 68 now.

He states that, “…given my age it is unlikely I could obtain new employment in my field” which he identifies as a system developer with Alberta Health. He states, “I am now retired”. [ 26 ] On January 23, 2023, after having received the Respondent’s Affidavit, the Father swore a Reply Affidavit. There, he states that he has arthritis which is “fine some days but very painful on others”. He says that on May 7, 2022, he was admitted to the Grey Nuns Hospital with shortness of breath and was diagnosed with blood clots in his lungs which causes “difficulty exhaling from my lungs”.

He has been “on a series of drugs to treat this” and is under supervision of a doctor at the University of Alberta Hospital.

[27] There is next to no evidence which establishes the skills, training, and experience of the Father. His evidence regarding hismedical conditions is vague, at best. There is no evidence regarding the job market. [28] The Mother argues that it is reasonable for the Father to have found a minimum wage job given all the circumstances. Thatposition represents the lowest expectation of the Father and I find it to be reasonable subject to my further comments below.

Given that,I also find that it would be reasonable for the Father to have found such a position by January 2022, as his severance pay, made in lieu ofemployment income, could be expected to have run out around that time. [29] I must next determine whether it would be reasonable for the Father to retire effective January 2022, given all thecircumstances. [30] The Father has not met his onus of establishing on a balance of probabilities that his health difficulties alone make itreasonable for him not to work.

My reasons for this are as follows: • he has not appended any medical records supporting his diagnosis or prognosis; • he has not provided any evidence that establishes that his medical conditions cause any restrictions in terms of his activitylevels or employability; and • he has not provided any evidence setting out his education, training or experience and has not explained how his healthdifficulties prevent him from finding other employment which otherwise might be appropriate. [31] Unlike Ma and Shumate, in which the Court had some evidence on these issues before it, all that is before the Court in thisApplication is the bare assertions of the Father that he suffers these health issues.

While I accept that he has some health issues, perhapscommensurate with his age, these assertions are not the objective evidence needed to meet his burden of proof. [32] The other factor which I consider is the Father’s age and the issues inherent in that, including reduced stamina and healthissues, which from time to time will require medical treatment, and a desire to work less or retire completely. The Father’s submissionswere that at age 68, he is entitled to retire, and it is reasonable for him to do so, having worked his entire adult life.

He further states thathe is not looking to avoid paying child support entirely, but only to reduce his child support obligations to be in line with his currentincome. [33] Certainly, retirement at the Father’s age is common. There are cases in which the Courts find that retirement by the age of 65is reasonable. For example, in Hague v Hague, 2021 BCSC 771, aff’d 2022 BCCA 325, the Court found at para 9: …[the] respondent was over 65 when he retired. He had worked for 45 years. His pension was fully vested and payable. Many peopleretire at this stage of life.

The claimant herself seems to have permanently left the workforce. In my view it was reasonable for therespondent to do the same thing. There is no evidence that his decision was motivated by a desire to stop paying support to the claimant.I have no reason to think that he will return to work if I grant the order. I can see no material distinction between the present case and Peters v MacLean, 2014 BCSC 990. There, as here, the applicant husbandsought to terminate or reduce his obligation to pay spousal support due to his retirement.

The parties had been together for 29 years.They separated in 2005 and divorced in 2012. The husband was 65, the wife 60. They had split their assets evenly. [34] However, imputing income to individuals who are within the range of retirement age and have various medical issues is alsonot unheard-of post-Peters. For example, in Brown v Brown, 2023 ABKB 117, Leonard J found that the wife, aged 59, did not want towork and wished to retire. She had medical issues preventing her from standing for long periods of time.

Leonard J was not convincedthat the wife had no ability to find part time minimum wage employment. [35] In Nykolyshyn v Dalton, 2022 ABKB 860, Loparco J considered a 50-year-old wife who had significant issues withdepression, fatigue and chronic pain, and concluded that there was no evidence of any health-related reasons for her inability to seek anyform of employment, and that the wife had the capacity to work, albeit with accommodations. [36] However, this is not a spousal support case, as in Brown and Dalton. This is a child support case.

The question is whether itis reasonable for the father to retire, given that there are five children of the marriage who have the right to support commensurate withthe Father’s earning capacity. [37] There are examples of such child support cases from other provinces. For example, in McPherson v McPherson-Hull, 2014ONSC 188, the father retired, and his income substantially decreased. He paid child support for three children and sought to have thatchild support reduced. He was 59 years old and entitled to fully retire. He suffered from stress and depression.

The Court states at para17: On the one hand, the respondent was certainly entitled to retire. On the other hand, he knew he had a responsibility to continuesupporting his children. The medical evidence he has provided falls way short of establishing on a balance of probabilities that he had toretire for medical reasons. On this evidence, I can only find that he voluntarily retired. He cannot use that personal decision to avoidproviding reasonable support to his children.

The respondent is still young and he is a well-educated man and there is no evidence that he could not be in position to supplement hisretirement if he took reasonable steps to do so. I find the respondent has an earning capacity well beyond his retirement pensionallowance. I therefore impute a gross annual income of $68,000 to the respondent as of January lst, 2013. [38] In Bentley v Bentley, (ONSC), the father was 64 and although he had retired voluntarily, he providedevidence of physical and emotional health issues. Despite that, the Court found at para 20:

…concluding that Mr. Bentley retired for genuine reasons because of the toll which the stress of the job was having on his health doesnot end the discussion. In all of the circumstances of this case, can Mr. Bentley still reasonably be expected to earn other income givenhis age, health, now that he is out of the stress of the high school environment, education, skills and job experiences? (see Donovan vDonovan, 2000 MBCA 80 , (MB CA), [2000] M.J. No 407 (C.A.); and Drygala v Pauli, supra).

Inconsidering this question I also take account of both the continuing need of the sole dependent child of this marriage as well as thecontinuing need of Ms. Bentley, if not a pressing immediate need then a possible future need upon her own retirement. I come to theconclusion that Mr. Bentley can be expected to take on some employment to supplement his retirement income. Given his superior workexperience to that of Ms. Bentley, I find that he would be able to, at least, earn what Ms. Bentley is currently earning. It is thereforereasonable, in all of the circumstances, to impute to Mr.

Bentley an income of $38,000 [39] These decisions are consistent with the fundamental principle that children have a right to support and a parent is required toact in a manner reflective of his or her obligations and cannot be excused from support obligations. [40] Without children, the Father would have every right to retire. However, this is not the fact scenario before the Court.

Thefact is, he does have children and he is obligated to support them in a way that is consistent with his capacity to do so. [41] Recognizing that the Father is 68 and does understandably have health conditions that require medical treatment, I concludethat he has the capacity to work at a part-time, minimum wage job, and that it would have been reasonable for him to have found suchemployment by January 2022. As such, he should be imputed the additional sum of $15,600, which is calculated using the Albertaminimum wage of $15.00. IV.

Conclusions [42] The parties agree that the Father’s child support obligations for 2021 amount to $2,809 per month.

Although this was notspecifically addressed by the parties, I direct that for 2021 he remains obligated to pay an additional $300 per month towards his arrearspursuant to the Friesen Order. [43] I find that the Father’s income for the purposes of calculating child support in 2022 and 2023 shall be his total income asreported on his income tax return plus $15,600. [44] I find that the Mother’s income for the purposes of calculating child support in 2022 and 2023 is as follows: Year Mother’s Income2022 $13,2352023 $26,212 [45] Child support obligations for 2022 and 2023 shall be calculated in accordance with

section 8 of the FCSG. CommencingJanuary, 2022 the Father will also pay $100 per month towards his arrears. [46]

Section 7 expenses will be paid by the parties based upon their proportionate incomes. [47] The parties will each bear their own costs of this application. Heard on the 16th day of June, 2023. Dated at the City of Edmonton, Alberta this 10th day of July, 2023. L.K. Harris J.C.K.B.A. Appearances: Theresa Wilson Wilson Law Group for the Applicant

Jordan Bienert Capital City Law for the Respondent