Thompson v Thompson, 2023 ABKB 107

Court of King’s Bench of Alberta Citation: Thompson v Thompson, 2023 ABKB 107 Date: 20230224 Docket: 4803 189765 Registry: Edmonton Between: Judith Thompson Applicant Cross-Respondent - and - Shaun Owen Junior-Thompson Respondent Cross-Applicant _______________________________________________________ Reasons for Decision of the Honourable Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] A Consent Divorce Judgment and Corollary Relief Order between the Applicant and Respondent was granted on June 23, 2020 and filed on July 15, 2020.

[ 2 ] The Applicant seeks an Order enforcing the Judgment by requiring the Respondent to pay his proportionate share of the children’s s 7 expenses retroactively to September 1, 2021 and ongoing. [ 3 ] The Respondent says that he is, and has been, paying the amount he is obligated to pay under the Judgment. That is, he disputes owing any retroactive s 7 arrears and is not obliged to pay any on an ongoing basis. II. Background [ 4 ] The parties were married in September 2006, separated in November 2018 and divorced on June 23, 2020.

There are two children of the marriage, now aged 15 and 11. [ 5 ] The parties entered into a Separation Agreement on January 14, 2020, much of which was incorporated into the Divorce Judgment and Corollary Relief Order granted on June 23, 2020. [ 6 ] Clause 26 of the Judgment reads: 26.

Spousal support payments shall be adjusted yearly to reflect an increase or decrease in the amount of child support payable, to ensure a gross monthly payment representing combined child and spousal support a total of $3,000 per month, payable to Judith from November 1, 2018 until November 1, 2025 once spousal support shall terminate.

Child support subsequent to November 1, 2025 shall be payable commensurate with the Federal Child Support Guidelines. [ 7 ] The Applicant states that the “combined” support payment in Clause 26 includes, and was always intended to include, spousal support and s 3 child support but not s 7 expenses. Accordingly, she argues, the Respondent remains obliged to pay his proportionate share of s 7 expenses in addition to the combined payment under Clause 26. [ 8 ] The Respondent argues that the “combined child and spousal support” of $3,000 in Clause 26 does include, and was always intended to include, s 7 expenses.

He states that this is why the word “gross” was used to describe the amount of the combined payment. III. Analysis [ 9 ] The parties submitted facts and materials they considered relevant to a proper

interpretation of Clause 26 of the Judgment. Most of this was extraneous and irrelevant as it included information as to why certain agreements were made, what facts and circumstances existed at the time of the Separation Agreement and Judgment and the respective party’s current circumstances. This was neither an application for rectification of the Judgment nor for a variation of it due to a material change in circumstances. This application concerned only the

interpretation of the existing Judgment and the consequences flowing from that

interpretation. [ 10 ] In order to properly interpret Clause 26, it is necessary to examine the whole of the Judgment and, particularly, the clauses that specifically relate to child support and spousal support. [ 11 ] It must first be noted that Clause 26 does incorporate the term “gross monthly payment” in relation to the “combined child and spousal support”. The use of the word “gross”, argues the Respondent, makes it clear that the combined amount was to include both s 3 child support and s 7 expenses, as well as spousal support.

In a family law context, however, the use of the word “gross” is most often used to define the spousal support to be paid or received before any tax considerations or to identify the total income of a payor to consider for the purpose of calculating support and the proportionate share of expenses. It is not used to define or limit the actual child support amount to be paid.

Accordingly, the inclusion of the word “gross” in Clause 26 simply refers to the spousal support portion of the combined payment and is neither unusual nor supportive of the Respondent’s position. [ 12 ] Clause 12 of the Judgment requires the Respondent to pay to the Applicant the sum of $1,969 per month in s 3 support for the children of the marriage commencing on November 1, 2018. [ 13 ] Clauses 16 to 23 relate specifically to s 7 expenses. Clause 16 specifies the Respondent’s proportionate share of s 7 expenses at 81.1%.

Clauses 17 and 18 define those expenses as including childcare, medical and dental premiums and expenses in excess of insurance coverage, extracurricular activities such as rhythmic gymnastics and extraordinary expenses for primary education. [ 14 ] Clause 19 requires the parties to exchange receipts and invoices and adjust s 7 expenditures as may be necessary. Reimbursement to the paying party is required within 30 days of the receipts or invoices being provided.

Clause 20 recognizes that s 7 expenses would likely change each year and provides a method for obtaining consent before incurring further or additional s 7 expenses together with an agreement to share any additional or different s 7 expenses on a proportionate basis. [ 15 ] Clearly the requirement for the Respondent to pay his proportionate share of s 7 expenses is in addition to his obligation to pay s 3 child support in the sum of $1,969 per month.

Were it otherwise, there would have been no need to: specify each party’s proportionate share of s 7 expenses in Clause 16; define those expenses in Clauses 17 and 18; require the exchange of receipts and invoices and reimbursement within 30 days in Clause 19 and; recognize likely changes in expenses each year and require consent in Clause 20. [ 16 ] Further, Clause 25 requires the Respondent to pay spousal support to the Applicant in the amount of $1,000 per month from August 1, 2021 until November 1, 2025.

Clause 26 then requires a combined child and spousal support payment of $3,000 per month with the spousal support payments portion adjusted to reflect any increase or decrease in the amount of child support payable. The

interpretation of Clause 26 proffered by the Respondent necessarily results in no s 7 expenses being paid at all. [ 17 ] That is, on his

interpretation, the Respondent is required to pay a combined amount that reflects only the sum of the agreed

spousal support of $1,000 and the agreed s 3 child support of $1,969, for a total of $2,969, with any additional amount ($31 in the first year) credited to spousal support. There would be no consideration whatsoever for the existing and anticipated s 7 expenses knowingly and specifically identified by the Applicant and Respondent in Clauses 17 and 18 of the Judgment to which they both consented. Payment by the Applicant for legitimate s 7 expenses, without any reimbursement, would have the practical effect of reducing the $3,000 amount she receives for support by the amount corresponding to those expenses. Such an

interpretation of the Judgment is both unreasonable and incorrect. [ 18 ] The Respondent argues that child support generally includes both s 3 and s 7 payments. In my view, this is because they are most often considered together and included in the same order, generally referred to as a child support order. Such is the case here, for example, as both s 3 and s 7 are considered under the broad heading “Child Support” in the Judgment. [ 19 ] But s 3 support and s 7 expenses are markedly different.

Section 3 support is base support and is paid in accordance with the amount set out in the Federal Child Support Guidelines. It is called “child support” in s 3. It is an amount the recipient expects to receive each month, together with any spousal support payments, to run the household.

Section 7 expenses are extraordinary expenses. That is what they are called in s 7. They are not referred to as “support”.

Section 7 does provide that these expenses “may” be included in a child support order, but this too suggests that they are not considered child support, only that they may be included in such an order. Notably, either party may incur extraordinary expenses and require proportionate reimbursement from the other party. The reimbursement of any or all of these expenses is not “support” in a true sense and does not provide support to the receiving party.

It merely reimburses them for actual expenses they have incurred for the child or children. [ 20 ] Indeed, even in the wording of the Judgment in issue, Clause 12 relating to the payment of $1,969 per month under s 3 refers specifically to “support of the children” while the s 7 Clauses refer only to the sharing of s 7 extraordinary expenses, and not to support. [ 21 ] The wording of the Judgment supports the

interpretation of Clause 26 in favour of the Applicant. The “gross monthly payment representing combined child and spousal support” of $3,000 does not include the proportionate share of the s 7 extraordinary expenses that the Respondent remains obliged to pay under the terms of the Judgement. IV. Conclusion [ 22 ] The Divorce Judgment and Corollary Relief Order between the parties requires the Respondent to pay to the Applicant the sum of $3,000 each month to November 1, 2025. The sum of $3,000 represents a combined payment of s 3 child support and spousal support.

It does not include any amount reflecting the Respondent’s obligation to pay his proportionate share of s 7 expenses. This obligation of the Respondent is separate and distinct from the combined payment. [ 23 ] Accordingly, the Respondent is obliged to pay his proportionate share of retroactive s 7 expenses to September 1, 2021 and ongoing s 7 expenses.

As a consequence, the balance of the remedies sought, both by the Applicant in her application and by the Respondent in his cross-application, are dismissed. [ 24 ] In accordance with Clause 20 of the Judgment, the Applicant must first obtain the consent of the Respondent before incurring any further or additional s 7 expenses for the children. Such consent cannot be unreasonably withheld. In the event of disagreement over retroactive or ongoing s 7 expenses, the parties may come back to court. Heard on the 22 nd day of February, 2023. Dated at the City of Edmonton, Alberta this 24 th day of February, 2023.

Eric F. Macklin J.C.K.B.A. Appearances: Judith Thompson Self Represented for the Applicant/Cross-Respondent Shaun Owen Junior Thompson Self Represented

for the Respondent/Cross-Applicant