Green v Roome, 2023 ABKB 654

Court of King’s Bench of Alberta Citation: Green v Roome, 2023 ABKB 654 Date: 20231124 Docket: FL01 34301 Registry: Calgary Between: Devan William Green Applicant - and – Brittney Marion Roome Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice M.A. Marion _______________________________________________________ I. Introduction [ 1 ] The Applicant ( Father ) applies ( Application ) to vary ongoing child support, to retroactively vary child support, and to determine whether certain expenses are or have been proper

section 7 expenses, under the Alberta Child Support Guidelines , Alta Reg 147/2005 ( Guidelines ), in the context of shared parenting. [ 2 ] The parties did not have a lengthy relationship but had a child together ( Child ) in June 2017. The Respondent ( Mother ) had primary parenting until late 2019, after which they have had a unique parenting relationship whereby the Mother has had sole decision making but the parties have shared parenting on a 50-50 basis. They live over 50 km apart.

The Father asserts the Mother has enrolled the Child in extracurricular activities, and a private school, without consulting with him and he alleges he should not have to pay his proportionate share of the costs incurred as a result of the Mother’s decisions. [ 3 ] The parties have agreed that a variation to ongoing child support, and a retroactive recalculation to the date the Child was born in June 2017, is appropriate.

They have urged the Court to make its decision on the record before it rather than deferring the decision so that further evidence can be provided. [ 4 ] For the reasons set out below, I vary ongoing child support to take into account the income of both parents, and to provide more certainty on what costs will be shared going forward. I also provide directions for the parties to recalculate retroactive child support obligations and to provide a timeline to equalize the difference between what has been paid and what should have been paid.

II. Procedural and Factual Background [ 5 ] The Child was born in 2017. The parties were never married or in a material relationship. Initially, the Mother was the primary parent and caregiver for the Child. There was no child support or parenting order, but the Father made some child support payments. [ 6 ] On February 26, 2019, the parties agreed to the terms of a Consent Final Parenting Order (which provided Mother with sole decision making and shared parenting) and a Consent Final Child Support Order ( CS Order ).

The CS Order provided that the Father would pay $1,150 per month commencing March 1, 2019, and that he would reimburse the Mother 75% of her “section 7 special or extraordinary expenses” for the Child as those expenses are incurred. There was no set-off of the parties’ Guidelines table-amounts as part of the CS Order. The parties both lived in Turner Valley at the time. [ 7 ] The Father did not initially exercise his shared parenting.

The parties agree that 50-50 shared parenting began in either November or December 2019. [ 8 ] In November 2020, after the Mother advised that she was relocating out of Turner Valley, the Father began formally seeking a change to the CS Order, by filing a Notice to Attend Family Docket Court. The Mother relocated to High River in approximately January 2021, and now resides in Blackie, Alberta.

The Father continues to reside in (what is now known as) Diamond Valley. [ 9 ] On January 19, 2021, Justice Kirker, in Family Docket Court, directed the parties to a Dispute Resolution Officer, and if they could not reach agreement, to an Early Intervention Case Conference ( EICC ) on June 8, 2021. The parties attended an unsuccessful meeting with the DRO on May11, 2021. [ 10 ] At the June 8, 2021 EICC, the parties reached agreement on some more detailed shared parenting terms. They also agreed to the following in respect of child support: 6. The current

section 3 payments will continue as between the parties. Arrears will be dealt with in a subsequent session. The current

section 3 payments will be on a without prejudice basis, such that any current over-payments may be eligible to be netted against any outstanding arrears. 7. [Father] shall pay 74% of any agreed upon s. 7 expenses and [Mother] shall pay 26% of any agreed upon s.7 expenses, such agreement not to be unreasonably withheld. [ 11 ] The parties acknowledge they reached this agreement, but also agree they did not have this portion of their EICC agreement memorialized in a form of court order. [ 12 ] Following the EICC, the parties communicated through counsel about enrolling the Child in a south-Calgary Montessori pre- school/day care program commencing in September 2021. [ 13 ] On September 1, 2021, the parties attended an unsuccessful judicial dispute resolution with Judge McLellan of the (now) Alberta Court of Justice. [ 14 ] On October 24, 2021, the parties agreed to a Consent Parenting Order ( Eidsvik Order ) which memorialized their agreement to the Child’s enrolment in the Calgary Montessori preschool/daycare commencing September 1, 2021.

The Eidsvik Order also re- confirmed Mother’s sole decision making, on these terms: The [Mother] shall have sole-decision making authority with respect to the Child, including those decisions relating to educational, medical, dental and religious upbringing. The [Mother] shall use her best efforts to consult with the Applicant with respect to any significant decisions with respect to the Child.

Each party shall make day to day decisions with respect to the child during their respective parenting time. [ 15 ] On October 6, 2022, the Father filed a Notice to Attend Family Docket Court regarding child support and, on November 9, 2022, Justice Campbell directed the issues of child support, both retroactive and ongoing, to a special chambers application, which was the Application before me. Justice Campbell set a

schedule for financial disclosure and affidavits, and directed the parties to attend before a Dispute Resolution Officer. The parties attended before a Child Support Resolution Program officer in April 2023 but did not resolve their dispute. [ 16 ] Justice Campbell also directed the parties back to Family Docket Court, if necessary, to deal with the issues of the school the Child would attend in fall 2023 and respecting decision making.

Neither party went back to Family Docket Court on those issues. [ 17 ] On June 1, 2023, the Father filed his Application seeking to vary ongoing child support, to retroactively vary child support, and to determine whether certain expenses are or have been proper

section 7 expenses. There is no cross-application. III. Record [ 18 ] The record on the Application includes: (

a) Father’s March 22, 2023 Disclosure Statement; (

b) Mother’s March 28, 2023, June 30, 2023 and September 25, 2023 Disclosure Statements; (

c) Father’s May 31, 2023 affidavit; (

d) Mother’s June 29, 2023 response affidavit; and (

e) Father’s August 16, 2023 reply affidavit. [ 19 ] At the hearing of the Application, I addressed several exhibits in the Mother’s March 28, 2023 filing. As per Alberta Court of King’s Bench Family Law Practice Note 2, para 36, the court may not consider hearsay evidence contained in letters or unsworn

statements authored by third parties that are appended to affidavits. I have only relied on Exhibits D and S as proof of the truth that the statements in those exhibits were made, not for the truth of their contents. [ 20 ] Exhibit E to the Mother’s affidavit was a letter marked without prejudice and appears to have been in the context of settlement discussions. The Father’s counsel confirmed he did not consent to Exhibit E being put into the record.

As I noted in Burns v Burns , 2023 ABKB 174 at para 24 : Parties are reminded that settlement communications are privileged, that settlement privilege can only be waived by both parties, and that it is improper to tender settlement communications to the court without consent of the other party: Bellatrix Exploration Ltd v Penn West Petroleum , 2013 ABCA 10 at para 26 ; Williams v Williams , 2020 ABCA 15 at para 22 . [ 21 ] To be clear, it is improper for either party to tender settlement communications without the consent of the other side, even if it is the author that wishes to tender the communication.

A party cannot make a settlement offer and then unilaterally decide to put that offer before the court. I have not relied on the contents of Exhibit E to the Mother’s affidavit. However, it is permissible for the Mother, as she does at paras 21 and 23 of her affidavit, to reference the fact that negotiations took place as evidence of her consultation with the Father. IV. Issues [ 22 ] The issues on this Application are: (

a) What is an appropriate ongoing child support variation order under

section 9 of the Guidelines ? (

b) What is an appropriate retroactive child support variation order? V. Analysis A. What is an Appropriate Ongoing Child Support Variation Order Under

Section 9 of the Guidelines ? [ 23 ] Pursuant to section 77(4) of the Family Law Act , SA 2003, c F-4.5 , before the court makes a variation order in respect of a child support order, the court shall satisfy itself that (

a) a change of circumstances has occurred since the making of the order or the last variation order, or (

b) evidence of a substantial nature that was not available at the previous hearing has become available. [ 24 ] In this case, both parties agreed and proceeded on the basis that a change of circumstances has occurred since the CS Order was granted in February 2019. I agree, and in fact there have been several changes of circumstances, including the Father initially not exercising shared parenting until late 2019, the Mother’s relocations to High River and then Blackie, the parties’ agreement reached at the 2021 EICC, and the parties’ income materially changing over time. [ 25 ] The parties agree that

section 9 of the Guidelines applies because they both have parenting more than 40% of the time. The second part of the

section 9 framework is determining the appropriate amount of support with an emphasis on flexibility and fairness: Contino v Leonelli-Contino , 2005 SCC 63 at paras 37 and 39 . [ 26 ]

Section 9 of the Guidelines mandates that the amount of child support in a shared parenting regime must be determined by considering three factors: (

a) the amounts set out in the applicable tables for each of the parents; (

b) the increased costs of shared parenting time arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 27 ] In MacDonald v Brodoff , 2020 ABCA 246 , the Court of Appeal summarized the key principles surrounding a

section 9 child support quantification, as taken from Contino , at para 12 : • The language of s 9 is imperative. The courts must determine child support in accordance with all three factors; • No one factor should prevail, but the weight to be given to each factor depends on the particular facts of the case; • There is no presumption that the Guidelines Table amount, or the set-off amount calculated under the Tables will be awarded.

Similarly, there is no presumption that something other than the set-off amount should be awarded; • The analysis is necessarily contextual, so a sound evidentiary foundation, including the parties’ budgets and actual expenses of both parents, is critical to the court’s analysis. Courts cannot and should not make assumptions about the parties’ situation, and courts should demand information relating to s 9(

b) and (

c) when the evidence filed is deficient; • The analysis under s 9 reflects a stated objective of the Guidelines : 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; • A critical inquiry is whether the children experience a difference in the standard of living as they move between the two households, as one of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households; • The goal under s 9(

b) is to apportion actual expenses between the parents in accordance with their respective incomes;

• In shared parenting arrangements, the court has great discretion when assessing the three factors. In particular, the court has full discretion under s 9(

c) to consider “other circumstances”. [ 28 ] It appears the parties have been proceeding on the basis that they would simply apply the simple set-off contemplated in

section 9 (

a) of the Guidelines , subject to adjustment for the specific expenses in dispute in this Application. [ 29 ] In Peters v Atchooay , 2022 ABCA 347 at para 89 , the Court of Appeal commented further on relying on Guidelines set-off amounts: As this Court observed in MacDonald , the Contino framework presents practical challenges in the need for a robust evidentiary record and the highly discretionary nature of the analysis. As a consequence, parties and courts alike often default to a simple set-off of Table amounts, without going on to consider the factors under ss 9(

b) and (c): MacDonald at para 50 . Where both parents have roughly equal income and living standards, that simple approach may make sense. “However, the greater the income disparity between the parties or the more pronounced the difference in living standards, the less a simple set-off approach will meet the policy objectives behind s 9.

Similarly, where one parent can demonstrate a disproportionate contribution to child expenses, a quick acceptance of the simple set-off approach runs the risk of unfairness”: MacDonald at para 62 . [ 30 ] I raised with the parties that neither party had provided robust evidence of their assets, budgets or detailed actual expenses to allow a complete analysis of the conditions, means, needs and other circumstances of each party and the Child as required under

section 9 (

c) of the Guidelines . Both parties agreed, and urged me, to rely only on the record before the Court rather than adjourning the matter to seek additional information. [ 31 ] In my view, if parties are represented by experienced legal counsel, and agree that a court can and should proceed on the record without all the information ordinarily required to do a robust

section 9 analysis, as a matter of judicial discretion and access to justice, it behooves courts to consider doing the best they can, provided they are satisfied that it is in the best interests of the children to do so. That is, fully-informed parents should be able to access public judicial resources to resolve their disputes, in a timely and cost- effective way in accordance with rule 1.2, provided it does not work to the detriment of children. In my view, these considerations are appropriate “other circumstances” courts may consider under

section 9 (

c) of the Guidelines . In some cases, courts must proceed to do the best they can on the evidence the parties put, or agree to put, before the court: AR v JU , 2022 ABQB 527 at para 37 ; Van Berkel v Van Berkel , 2021 ABQB 57 at paras 36-40 ; C(TV) v H(ML) , 2015 ABQB 668 at paras 42-43 ; Wilgenbusch v Gerard , 2021 ABQB 1012 at para 23 .

In another context, see: Wildeman v Wildeman , 2015 ABQB 195 at paras 51 and 69 . [ 32 ] Accordingly, with the agreement of both parties, I have proceeded to decide this matter with emphasis on the Guidelines table amounts and the disputed expenses, based on the record before me even though a more robust record would have been preferable. In the circumstances, I have determined that I am able to and should make the necessary findings of fact in chambers: Fleming v Spence , 2023 ABCA 315 at para 21 . 1. Table Amounts [ 33 ] The parties are both employees and determining their Guidelines income is not complex.

They agree that their Guideline incomes were $127,601 (Father) and $78,499 (Mother) for 2022 and each estimate them to be the same in 2023. Based on the Guidelines , this equals $1,128.93 payable by Father and $683.89 by Mother, for a net amount owing from Father to Mother of $445.04 (subject to any adjustment the Court might make under sections 9 (

b) and (

c) of the Guidelines ). 2. Private School Expenses [ 34 ] In my discretion under

section 9 of the Guidelines , I have considered whether the private school expenses constitute a

section 7 expense, because

section 7 expenses can be examined directly as part of the

section 9 child support analysis: Contino at para 71 ; Conway v Conway , 2011 ABCA 137 at para 7 . I have also considered whether, even if they do not qualify as a

section 7 expense, some other contribution by the Father is appropriate given the parties’ shared parenting relationship and given the discretionary nature of

section 9 of the Guidelines . That is, even if an expense does not qualify as a

section 7 expense, it may nonetheless be share-able in some amount under

section 9 of the Guidelines . Ultimately, it is a question of discretion. In considering this question, I have found it helpful to first conduct a

section 7 analysis. [ 35 ] The onus is on the party claiming a

section 7 expense to prove it by showing that the expense fits within the enumerated categories: FJN v JK , 2019 ABCA 305 at para 74 , citing Delichte v Rogers , 2013 MBCA 106 at paras 26-28 . The applicable category for private school costs is section 7(1) (

d) of the Guidelines , which requires that primary school education or any other educational costs must be “extraordinary” as set out in section 7(1.1) of the Guidelines . [ 36 ] An expense is “extraordinary” if it exceeds those that the parent requesting it can reasonably cover, taking into account the parent’s income and the amount the parent would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount the court has otherwise determined is appropriate: Guidelines , section 7(1.1) (a); FJN at para 74 ; Delichte at para 26 .

It may also be extraordinary taking into account various other factors including the nature and number of the educational programs, any special needs and talents of the child, the overall cost of the programs and activities, and any other similar factor: section 7(1.1) (b). [ 37 ] Even if extraordinary, to be a

section 7 expense, an expense must be both necessary and reasonable: Guidelines , section 7(1) ; FJN at para 75 ; Delichte at paras 33-34 . [ 38 ] The necessity of the expenses must be in relation to the child’s best interests. Necessary costs include not only providing for the necessities of life but also things that are suitable to or proper for a child’s station in life bearing in mind the child’s requirements at the time: Guidelines , section 7(1) ; FJN at para 75 ; Delichte at para 34 ; Hiemstra v Hiemstra , 2005 ABQB 192 at paras 52-58 .

[ 39 ] The reasonableness of the expense is assessed in relation to (

a) the means of the spouses and those of the child; and (

b) the family’s spending pattern prior to the separation: Guidelines , section 7(1) ; FJN at para 75 ; Delichte at para 35 . The question is reasonableness in the sense of whether the other spouse should be required to contribute: FJN at para 78 . [ 40 ] The parties’ prior experience and spending patterns is also relevant to necessity: FJN at para 75 ; Delichte at paras 31-44 . [ 41 ] Further, as recently summarized by Justice Lema, there is a long history of Alberta cases where a lack of consultation is generally treated as a relevant – sometimes decisive – factor in gauging a parent’s exposure to

section 7 expenses: Joe-Joe v Joe-Joe , 2023 ABKB 551 at paras 21-26 ; DJE v PAE , 2014 ABQB 25 at paras 38-39 , affirmed 2014 ABCA 403 at paras 27-31 ; Sherbo v Sherbo , 2021 ABQB 76 at para 53 ; Nyereyogana v Schofield , 2021 ABQB 662 at para 25 ; Bland v Bland , 1999 ABQB 236 ; NFP v DWH , 2006 ABQB 362 at para 9 ; AJU v GSU , 2015 ABQB 6 at para 207 . In DJE , the lack of consultation was a relevant factor in denying shared recovery of private school costs. [ 42 ] I note the following factors or make the following findings in this case: (

a) the educational component of the annual Tanbridge Academy private school fees is $15,450 (or $1,287.50 per month on average annually); (

b) the private school costs are likely more than the Mother can reasonably cover on her own, without contribution from the Father. For the purposes of my analysis, on a preliminary basis, the Mother earns approximately $78,500 (or $6,541 per month pre- withholdings and tax) plus $5,340.48 ($445.04 per month) for child support based on simple set-off; (

c) the private school costs are something that the parties likely could afford based on their combined incomes, if they are both contributing; (

d) the parties had previously agreed to pay for Montessori preschool and kindergarten; (

e) the Child does not have any special needs that require private school. He also is too young to reasonably conclude that he has a special talent that requires fostering through private school instead of public school. Based on submissions made in argument, it appears the reason for the Mother preferring private school included her avoiding public schools in her neighbourhood’s catchment area where she may have attended as a child; (

f) the private school has a drawback to the Child’s best interests, as it means he is going to school in a location that is quite distant from either of the two places he lives. The Mother asserts that it is in the Child’s interests because it avoids a longer commute for the Child and one of the parents if the Child goes to school in one of the public schools within the catchment areas of one of the parents. Based on the distances between the parents’ residences and the private school, and the distance between the parents’ residences, I do not find this argument persuasive.

The Child would actually likely spend less distance and time commuting to and from school if he went to school in High River, for example, as opposed to at the Tanbridge Academy; (

g) on January 28, 2023, the Mother executed a financial agreement with Tanbridge Academy which, on its terms, obligated the Mother to pay a $500 finance fee and $14,950 for school tuition (paid over nine monthly instalments). The financial agreement provides: I further agree that all fees, including additional fees, are non-waivable and non-refundable. Once enrolled, if a student withdraws for any reason before starting the school year or during the school year, including dismissal by the school, no tuition fees, paid or due, are refunded or waived. This protects the school community from financial loss due to late withdrawals; (

h) the Mother did not consult with the Father before executing the agreement with Tanbridge Academy. The Father first found out about it when he received disclosure in March 2023 with a receipt for a $1,500 deposit that the Mother had paid; (

i) by letter dated April 18, 2023, the Mother’s counsel confirmed that the Child was “already enrolled” at Tanbridge Academy and that the Mother was seeking the Father’s contribution to these fees; (

j) the parties agreed in the June 2021 EICC that the Father would pay

section 7 expenses based on the parties’ proportionate incomes when they were agreed , such agreement not to be unreasonably withheld. Then, in the Eidsvik Order, the parties agreed that the Mother, in light of her sole decision making authority in the context of shared parenting, would “use her best efforts to consult” with the Father about significant decisions with respect to the Child; and (

k) while the parties did attempt to resolve the private school costs, this was long after the Mother had committed financially to Tanbridge Academy in January 2023. There is no evidence before me that there was any consultation before financially committing to, and enrolling the Child in, private school. [ 43 ] In all the circumstances, I find that the private school costs are extraordinary, however, I find that they are not necessary or reasonable in the circumstances and thus they do not qualify as

section 7 expenses. Courts have effected similar results in other cases: SAP v DMP , 2020 ABQB 811 ; Joe-Joe (and cases cited therein above); DJE v PAE , 2014 ABQB 425 at paras 38-39 . The Mother is not entitled to claim private school educational costs as

section 7 expenses. [ 44 ] However, in my view, in a shared parenting case a

section 7 analysis does not necessarily end the matter. The Father agreed to provide the Mother sole decision making, including over educational decisions. He has never applied to vary that aspect of the parenting orders. In fact, he confirmed the Mother’s sole decision making in the Eidsvik Order.

He was also directed by Justice Campbell to go back to Family Docket Court if he wanted to address the Child’s school, but he did not do so. [ 45 ] If the Mother has to bear the private school costs she has committed to on her own, based on the record before me, I find it will likely cause the Child to experience a material difference in the standard of living as he moves between the two households, which would not be offset by the Father’s net child support payment owed to the Mother. Further, the Mother would be contributing a

disproportionate amount of the Child’s expenses. On balance, this result would be inconsistent with one of the overall objectives of the Guidelines , and

section 9 thereof, as confirmed in MacDonald v Brodoff at para 12 and Peters at para 89 . [ 46 ] Therefore, based on all the circumstances and the evidence before me, although the private school costs do not qualify as a s. 7 expense, in the exercise of my discretion, I find it is appropriate, in the best interests of the Child, and having regard the condition, means, needs and other circumstances of the parties, for the Father to contribute 50% of the private school costs.

However, if his income falls below 50% of the parties’ aggregate annual income, then his obligation will be reduced and he shall pay a percentage of the private school costs based on his proportionate share of the parties’ respective Guidelines incomes. 3. Tanbridge Academy Hockey Program [ 47 ] The Mother also committed to a private hockey program as part of her financial arrangement with Tanbridge Academy, with an annual cost of $1,495. As noted, the Father was not consulted about this cost prior to the Mother’s financial commitment.

Further, the Child already plays community hockey, which the Father agrees to, supports, and to which he contributes. The additional annual cost of another hockey program is not reasonable or necessary cost and it is not recoverable as a

section 7 expense. Further, in light of its amount and the lack of consultation, the cost for the Tanbridge Academy hockey program will be borne 100% by the Mother. 4. Father’s Childcare Costs [ 48 ] The Father’s evidence is that he requires childcare during certain months when he is working. Those would be proper

section 7 costs pursuant to section 7(1)(

a) and they shall be shared in proportion to the parties’ income, namely 62% Father and 38% Mother. To be clear, while the Father is expected to explore reasonable cost options, the Father is not required to arrange for pick-up, drop-off, or childcare with the Mother during his parenting time if he does not want to agree to that. 5. Other Expenses [ 49 ] The parties reached agreement before me in oral argument as to the inclusion of some other

section 7 expenses going forward, particularly in respect of community hockey, lacrosse and swimming, which agreements I have considered and reflected in my order. 6. Conclusion re Ongoing Child Support [ 50 ] Based on the foregoing, I order: (

a) the Father shall pay the set-off net amount of $455 commencing effective October 1, 2023 and payable thereafter on the first day of each month; (

b) the parties shall share

section 7 expenses proportionately to their guideline incomes, at 62% Father and 38% Mother; (

c) section 7 expenses shall only include: (

i) childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time; (ii) that portion of the medical and dental insurance premiums attributable to the child.

This includes the amounts paid bi-weekly by the Father for health benefits; (iii) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses.

Therapy expenses will only be recoverable if recommended by a registered psychologist, psychiatrist or physician, provided that the parties will first exhaust any benefits of the parties and that any

section 7 expenses for therapy is capped at $750 of uninsured costs per year (subject to agreement of the parties); (iv) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs (for clarity, however, as per the reasons above, the educational costs of Tanbridge Academy shall not be

section 7 expenses); (

v) expenses for post-secondary education; (vi) costs of community hockey and lacrosse registration and equipment. This shall not include other hockey or lacrosse camps unless agreed by the parties. Further, for clarity, the costs of the Tanbridge Academy hockey program shall not be a

section 7 expense; (vii) costs of public swimming lessons (not private lessons) to a maximum of $300 per year, and provided they do not take place during hockey or lacrosse season; and (viii) any other

section 7 expenses agreed to in advance by the parties. Except as set out above, if the parties incur other expenses without the prior agreement of the other party, or court order, they shall not be considered

section 7 expenses; (

d) the Father shall pay 50% of the Tanbridge Academy private school costs, not as a

section 7 expense but as part of child support under

section 9 of the Guidelines . If the Father’s income falls below 50% of the parties’ aggregate annual income, then his obligation will be reduced and he shall pay a percentage of the private school costs based on his proportionate share of the parties’ respective Guideline incomes; (

e) the Father shall not be obligated to pay any portion of the Tanbridge Academy hockey fees, unless he agrees to same; and

(

f) sporting team cash-calls shall be shared 50%, not based on the parties’ proportionate income. [ 51 ] The order shall include paragraphs 10-12 from Alberta Court of King’s Bench Family Law Form FL-27 respecting maintenance enforcement, ongoing financial disclosure, and recalculation. B.

What is an Appropriate Retroactive Child Support Variation Order? [ 52 ] The rules surrounding retroactive child support variation orders were confirmed and summarized in Colucci v Colucci , 2021 SCC 24 at paras 113-114 . [ 53 ] In this case, the parties agree that it is appropriate for the court to make a retroactive variation order going back to the birth of the child on June 30, 2017.

Given the agreement of the parties, and a lack of evidence that conducting a retroactive adjustment would be detrimental to the Child, it is unnecessary for me to go through the steps contemplated in the Colucci framework to determine effective notice, formal notice, or whether the applicable presumptive period of retroactivity should be adjusted. [ 54 ] The parties have agreed on their Guidelines incomes from 2017 to 2022, and do not take issue with each other’s estimate for 2023.

They also agree, as they did for ongoing income, that the child support amount during the shared parenting time-frame should be based on the same principles discussed above for ongoing support, namely simple-set off of Guideline income amounts payable plus other expenses shared as

section 7 expenses or otherwise as may be directed by the court. [ 55 ] The parties also agree on the amounts that the Father has paid over time. Their only material disputes are the date shared parenting actually started, which expenses should be included as

section 7 expenses or otherwise shared, and how (if at all) the parties’ tax filings in respect of claiming child care expenses on their taxes should be handled. [ 56 ] Again, in these unique circumstances, I have determined that I am able to and should make the necessary findings of fact in chambers: Fleming at para 21 . [ 57 ] Based on my review of the record, and the submissions of the parties, I exercise my discretion and direct the parties to recalculate child support amounts owed by the Father, for the period July 2017 to September 2023 based on the following findings and principles: (

a) for the period July 2017 to November 2019, while the Mother was the primary parent, the Father’s obligation shall be based on his

section 3 child support based on his Guidelines income; (

b) for the period December 2019 to September 2023, the Father shall pay

section 9 child support based on the Guidelines income simple-set off based on the parties’ agreed annual incomes from 2017 to 2022 as submitted in their materials, and based on their estimated annual amounts for 2023 as I set out earlier. I have chosen December 2019 as the start month for shared parenting because the Father’s evidence that he started shared parenting in November 2019 did not specify when, so December 2019 is the first full month of shared parenting based on the agreed evidence; (

c) the Father shall pay

section 7 expenses based on the parties’ proportionate incomes each year from 2017 to 2023; (

d) the

section 7 expenses shall include the following which I find to be appropriate

section 7 expenses: the Mother’s claimed play therapy, claimed community hockey and lacrosse expenses (including equipment), claimed swimming expenses, and claimed childcare costs (including the entirety of the Montessori school costs); (

e) the Mother’s claimed sport-team cash calls, and school resource fee, shall be shared 50%, not based on proportionate income, as I find they are not

section 7 expenses but are appropriately shared by the parties in their shared parenting relationship; (

f) Tanbridge Academy hockey costs incurred shall be the sole expense of the Mother, for the same reasons as outlined earlier; (

g) Tanbridge Academy tuition and finance fees incurred prior to October 1, 2023 shall be shared 50%, for the same reasons as outlined earlier; (

h) there shall be no adjustments as a result of the way the parties have historically filed their taxes and claimed childcare costs. If either party owes taxes (or is entitled to a further refund) in the future for this period due to errors in filing their taxes prior to 2023, they are solely responsible for (or entitled to) any such amounts and it shall not be revisited in a further retroactive adjustment; and (

i) there shall be no interest on any amounts. [ 58 ] The parties shall complete the recalculation by the end of December 2023 and, once agreed, shall include it in a form of Consent Order for my signature.

If the parties cannot reach agreement on the net calculation of the retroactive child support amount owed, they may contact my office and I will determine a process to finalize the retroactive calculation. [ 59 ] Once the recalculation is agreed (or resolved by me if necessary), any net amount owing by one party to the other (unless otherwise agreed by the parties) shall be paid in 10 equal instalments commencing on the 1 st day of the month following the filing of the order embodying the agreement or resolution of the recalculation, or such other date as may be agreed by the parties. VI.

Conclusion [ 60 ] I make the orders as noted above. Given the mixed success of the parties, each party shall bear their own costs of this Application, unless either party has made a settlement offer they wish to bring to the attention of the court in which case they will do so

within 30 days of this decision. Heard on the 13 th day of October, 2023. Dated at the City of Calgary, Alberta this 24 th day of November, 2023. M.A. Marion J.C.K.B.A. Appearances: David G. Wright for the Applicant Tammy L.D. Nicholson for the Respondent