Meier v Sirman, 2023 ABKB 704

Court of King’s Bench of Alberta Citation: Meier v Sirman, 2023 ABKB 704 Date: 20231208 Docket: FL03 37572 Registry: Edmonton Between: Sarah Bennett Meier Applicant (Cross-respondent) - and - Jonathan William Sirman Respondent (Cross-applicant) _______________________________________________________ Reasons for Judgment of the Honourable Justice M. J. Lema _______________________________________________________ I. Introduction [ 1 ] A “day-to-day care” mother seeks increased child support back to 2011, based on recent disclosure by the father revealing larger-than-understood income over that period.

She also seeks contributions from him to extracurricular-activity expenses in 2022 and 2023. [ 2 ] The father argues that he paid the appropriate child support between 2011 and 2019 and that, since then, the parties have had shared parenting. The results, per him, are that he overpaid support in, and the mother owes him s. 9 child support for, the latter period (2019-2023). On extracurriculars, he denies responsibility for any share of the expenses, citing non-consultation by the mother.

[ 3 ] I find increased s. 3 child support is owing (back to 2011), the mother has remained the primary parent throughout, and retroactive s. 7 support for 2022 and 2023 is payable by the father, all as explained below. II. Analysis A. Mother’s request for retroactive base child support (2011-2018) [ 4 ] I start with the years 2011-2018. [ 5 ] The parties agree that, as a result of a mediation in 2010 (date unspecified), the father agreed to pay monthly child support of $824, representing base (s. 3) child support and an unspecified amount for childcare i.e. effectively a blended s. 3 and s. 7 payment. [ 6 ] Per the mother: I believe the [father] has been underpaying

section 3 child support for several years, as his income was greater than the $80,000 on which [it] was based . [references to father’s 2020-2023 income, ranging between $94,598 and $95,301]. … … the [father] and I attended mediation in 2010, whereby he agreed to pay

section 3 expenses in the amount of $824 per month, which factored in an amount for daycare . I do acknowledge that the [father] may have overpaid for daycare, but I have yet to be advised as to what that amount is. He has not paid substantive

section 7 expenses since separation. [mother’s affidavit sworn October 4, 2023, paras 5 and 7] [emphasis added] [ 7 ] Per the father: There has never been a child support order in place. In 2010, the [mother] and I attended mediation on the issue. We reached an agreement, but it was not reduced to writing. We agreed that I would pay $824 per month in child support. This amount took into account

Section 3 base child support and an agreed upon amount for childcare. The [mother] hired a live-in nanny, which we agreed would not be fully a

Section 7 expense given the high cost and the other duties that the nanny would perform for the [mother]. The total support amount was also based upon the [mother] having primary care of [our child]. [father’s affidavit sworn October 17, 2023, para 4] [emphasis added] [ 8 ] I do not follow the mother’s reference to “the $80,000 on which [it] [i.e. the s. 3 portion of the blended child-support payment] was based.” The parties did not provide evidence of the father’s income in 2010 i.e. the year in which they reached their “$824 in blended child support” agreement.

Per a CRA notice of assessment, his line 150 income in 2011 was $67,745. From the pattern of his income as a teacher reflected in his 2011-2022 tax returns, I infer that his 2010 income was either approximately the same as his 2011 income or slightly less.

In any case, I do not accept that the parties anchored their blended-payment agreement on an actual or even assumed income for the father of $80,000, with him not achieving that (approximate) income level until 2013 (when he earned $78,104). [ 9 ] Taking the father’s 2011 income ($67,745) as a proxy for his 2010 income, and accepting the mother’s Child Support Guideline calculation of one-child s. 3 support at that income (of $592 per month), which the father did not challenge, I find that the parties effectively agreed to the father paying s. 7 support of $232 i.e. the difference between $592 and $824. [ 10 ] In light of the mother’s position being that $200 was the s. 7 portion, I will continue on that basis i.e. accept that, at the outset, the s. 3 portion of the blended payment was $624. [ 11 ] The thrust of the mother’s position is that (1) the father did not provide ongoing disclosure of his income through the years or any income disclosure at all until the summer of 2023, when he provided copies of his 2011-2022 tax returns and notices of assessment; (2) even though no order or agreement obliged the father to disclose his income year by year, as a child-support payer he knew s. 3 support would increase as his income increased; (3) despite his income mostly increasing between 2011 and 2018 (i.e. overall from $67,745 to $91,829), he continued to pay the same ($824) monthly support; (4) with nanny expenses continuing through this period (actually running to the end of September 2019), his monthly s. 7 contribution of $200 continued to run, limiting his s. 3 contribution to the historical amount ($624); (5) with his income increasing most of those years (with 2014 as an exception, when his income dropped to $55,487) and his blended payment remaining at $824, he began (overall) to under-pay required s. 3 support; and (6) applying the lessons of Colucci v Colucci , 2021 SCC 24 , including the effects of non-disclosure of income by a support payor, the father must now pay the under-paid support for these (2011-2018) years, having no reasonable excuses for not disclosing or under-paying the required s. 3 support. [ 12 ] The father’s only response here focused on the s. 7 portion.

Per him, the nanny expenses were not required at any point in or after 2014, when their child began full-time school and, in any case, the nanny provided other services for the mother (including caring for the mother’s other children) and, beyond that, the mother did not provide receipts of, or any other details, of her nanny expenses. [ 13 ] I reject the father’s position here. He agreed from the start that his support payment would have a s. 7 portion, that it would help cover childcare, and (implicitly) that the circa-2011 contribution of $232 was reasonable.

Per his own description of their agreement, the mother was not required to provide receipts or other details of her childcare expenses. Plus, he did not explain why the child starting full-time school would completely eclipse the need for childcare i.e. with pre- and post-school care apparently required, at least in the kindergarten-elementary-and-possibly-early-junior-high years, which this 2011-2019 period seems to cover. [ 14 ] As well, the parties had already agreed, as reflected in the father’s own description of the agreement, that he was contributing

only a subset of the overall nanny expenses. [ 15 ] Finally, with the mother effectively reducing her s.7-portion claim from the claimable amount of $232 (as explained above) to $200, and with that portion amounting to only $10 a day (assuming 20 school days in a month), the father has no legitimate basis to complain about the s. 7 portion of the blended payment i.e. the $200 amount running throughout the entire 2011-2019 period (up to September 2019, when the nanny ceased working for the mother). [ 16 ] With no other argument offered by the father against the mother’s retroactive child support claim for 2011-2018, and applying the central lessons of Colucci on non-disclosure and the need for child support to increase as income increases, per the Child Support Guidelines ), I accept the mother’s calculations of the s. 3 child support paid by the father in these years (i.e $624 monthly), the s. 3 child support required per the Guidelines (reflecting his actual and largely-increasing income from 2011-2019), and the net underpayment by him in those years of $5,172 (i.e. aggregating the first eight lines of the chart at paragraph 10 of the mother’s brief (2011-2018 data). [ 17 ] I will address the payment of those arrears in the conclusion of this judgment.

B. Nature of parenting from 2019 to the present 1.

No shared parenting in this period [ 18 ] Before examining child support for 2019 to the present, I will decide the father’s cross-application for a declaration that, from February 22, 2019, the parties have actually had shared parenting of their child i.e. despite the mother being characterized, in a Provincial Court of Alberta parenting order on that date as the “day to day” parent and the father paying s. 3 child support to the mother throughout this period i.e. at least up to summer 2023, when he advised the mother that he so viewed their parenting for the last 4.5 years. [ 19 ] As I understand it, the father accepts that the mother was the primary parent before February 22, 2019. [ 20 ] The father’s current position on parenting since then led to conflicting “hour counts” by each party. [ 21 ] Per the mother, her parenting time clearly exceeds the 60 per cent threshold i.e. the father’s time is clearly below the 40 per cent threshold for shared parenting. [ 22 ] I will focus on the father’s calculations, with him having the burden of showing that the pre-existing parenting (primary by mother) changed with the February 2019 order or otherwise “on the ground” since then. [ 23 ] The father first pointed to the parenting

schedule approved by that order, calling it an “8/6” arrangement. Per him, that translates to 57 per cent parenting by the mother and 43 per cent by him. [ 24 ] Given that the parenting

schedule includes 4 days (out of 14) in which parenting time is divided between the parties (i.e. transition days), a “day count” is too rough here. [ 25 ] As the father recognizes. Per his brief, he also provided an “hours count”, reflecting order-directed parenting in both regular two-week spans and extended parenting for each parent during the summer.

His calculation, which I accept, is that his annual parenting amounts to 3,494 hours. [ 26 ] He acknowledges that a year has 8,760 hours, that 40 per cent translates to 3,504 hours, and that, on his own tally, he is 10 hours short. [ 27 ] But (as outlined in his brief) he draws on various extra days, particularized in his affidavit sworn October 17, 2023, as “several extra days each year”, which he sees as putting him well over the 40 per cent mark. [ 28 ] On this aspect, the mother acknowledges all of those extra days.

But in her affidavit sworn October 25, 2023, she asserts that she received identical make-up time in return. [ 29 ] In his reply affidavit sworn October 31, 2023, the father effectively accepts the mother’s identical-make-up-time evidence: In response to the [mother’s] Affidavit …, [her] claim that each parent’s extended period of time with [our child] was offset by an equal amount of time for the other parent confirms that we have been in a shared parenting arrangement since 2019. [ 30 ] The father’s acknowledgement of fully offsetting make-up time for the mother does not in fact confirm shared parenting. [ 31 ] The implicit premise of the father’s position here is that make-up time for the mother should presumably reflect her receiving more-than-equal make-up time i.e. reflecting her more-than-equal (actually, more than 60 per cent (per her)) base parenting time. [ 32 ] This does not compute.

If (for example) the father received five extra parenting days (i.e. days on which the mother would otherwise have parented their child), his annual-hours tally would increase by 120 hours (5 x 24), with a corresponding drop in the mother’s annual hours tally. [ 33 ] But if she received identical make-up time (drawn out of what would otherwise have been the father’s parenting time), she receives a bump of 120 hours, and he experiences a corresponding drop. [ 34 ] Extra days for the father, when offset by equal extra days for the mother, do not affect the annual-hours tally for either of them.

[35] In the end, despite the father’s “extra days” evidence, the mother’s uncontested “make-up-time” evidence undercuts thatevidence i.e. keeps the hours tally for each at the same figure i.e. the father remains at 3,494 i.e. just shy of the 40 per cent mark. [36] In any case, the father did not offer any evidence in response to the mother’s additional evidence of other days or nights whentheir child would remain with the mother i.e. on what would otherwise have been the father’s parenting days (see the closing portion ofparagraph 4 of the mother’s affidavit sworn October 25, 2023). [37] On whether getting close to the 40 per cent threshold counts, the answer is no, per LC v ROC, 2007 ABCA 158: The best we can do, given this record, is to make the following points to help guide the case management judge in future proceedings:… The case management judge has “deemed” the father to have 40% parenting time for the purposes of setting child support payments,regardless of the actual parenting time.

There is no place for “deeming” parenting time to be what it is not. For the purposes ofcalculating child support, the percentage allocation of custody time must conform to the actual evidence on this point. To permit a courtto deem a lesser percentage of parenting time to be equivalent to the 40% threshold in the Federal Child Support Guidelineswould permit a court to circumvent the threshold set by Parliament.

This must not be done. [para 11] [emphasis added] [38] See also Ramachala (Holland) v Holland, 2020 ABQB 432 (Feth J. as he then was): In my view, the mathematical approach best advances the goals of objectivity, efficiency and consistency identified in s 1 of theGuidelines. That approach also honours the direction from the Alberta Court of Appeal in LC that the strict 40% threshold not becircumvented. The mathematical approach is often based on counting complete and partial days, but where the margins are thin around the 40%threshold, hours are more accurate: Kolada at paras 15 – 17.

When calculating time in hours, the 40% threshold is met if the parenthas the child in their care for 3,504 hours per year: Edwards v McMahon, 2020 ONSC 2052 at para 119. [paras 45 and 46] [emphasisadded] [39] And Professor Rollie Thompson’s

article “The TLC of Shared Parenting: Time, Language and Cash”, 201810853: The [shared-parenting] test is quantitative, not qualitative.

Section 9 [of the Child Support Guidelines] is clear that the threshold is “40per cent of the time over the course of a year.” The test is thus quantitative.

It is not whether this is “truly shared custody”, and a courtcannot just “deem” that a parent reaches 40 per cent or “round up” to get there. [citing, in part, LC v ROC, cited above] [40] The father does not succeed in proving that he parented 40 per cent of the time over the course of any of the years from 2019to the present (inclusive). [41] Accordingly, child support for these years will not be readjusted as requested by the father. [42] If I had found that parenting had shifted from primary-by-mother to shared, that change would have be a material change ofcircumstances (potentially) opening the door to child-support changes: GM v JB, 2019 ABQB 772 (Devlin J.) at para 91; Milne v Milne,2008 ABQB 270 (Veit J.) at para 32; and Thomson v Pitchuck, 2020 NSCA 65 at para 30. 2.

No retroactive cross-support warranted in any case [43] Below I will return to the mother’s request for increased child support for 2019 to the present. [44] However, I first note that, even if the father had reached the 40 per cent threshold, whether via the February 2019 order orsimply increased parenting by him “on the ground” i.e. departing from that order, I would not have ordered retroactive changes to childsupport for any portion of February 2019 to June 2023, when the father’s counsel advised the mother’s counsel of the father’s “sharedparenting since February 2019” position, for these reasons: [1] the father would presumably have been aware of the change as soon as it occurred e.g. (on his view) once the February 2019 orderhad been pronounced; [2] he did not point to any disability, impairment or other limitation that prevented or hindered him from raising his position earlier thanJune 2023; [3] he did not point to anything the mother did or did do that prevented him from raising his “shared parenting as of February 2019”position earlier than June 2023 e.g. that he felt intimidated by her; [4] in the end, the father did not provide any explanation, reasonable or otherwise, for not raising this subject (e.g. announcing hisshared-parenting position, asking for s. 9 cross-support or otherwise) before June 2023.

If he believed that the February 2019 orderbrought about shared parenting or otherwise that state had been achieved and (in turn) that child support should change to reflect that, heshould have raised the issue with the mother at the time i.e. instead of waiting up to 4.5 years to do so; [5] the father continued to pay the $824 monthly throughout, which included (as discussed above) both a s. 7 component (accepted bythe mother as $200) and an initially adequate s. 3 component and eventually inadequate such component (as also discussed above).

Thatcontinued payment of s. 3 support (whether adequate or inadequate) signalled to the mother that he was apparently content with paying s.3 support to her and receiving no cross-support from her i.e. that he was proceeding, as she was, on the basis of primary parenting by her; [6] he did not seek any portion of any government benefits paid to the mother during that period i.e. on the basis that they should be

shared i.e. as between shared-parenting parents; [7] I do not see any blameworthy conduct by the mother here i.e that might justify or help justify the variation requested by the father. We are not in the zone of “obvious” changes to parenting e.g. where children move from primary parenting by one parent to primary parenting by the other, or where changes to or from shared parenting are readily apparent. Instead, we are operating in the narrow band around 60:40 parenting.

If the father had been right that the February 2019 order had produced 60:40 parenting (or slightly more than 40 per cent for him), it would not necessarily have been unreasonable for the mother to continue to see herself as the primary parent i.e. with her pre-order agreed status as such continuing post-order i.e. until the father raised the issue of the parenting having tipped (however so slightly) into the shared-parenting zone i.e. with his total hours edging over 3,504.

In other words, we are not dealing with a recipient parent ignoring an obvious new parenting reality under which she or he would have to start becoming a payor as well; [8] as for the child’s circumstances , the father did not demonstrate how imposing a retroactive duty to pay child support on the mother, which would increase the father’s resources by $X while, at the same time, diminishing the mother’s resources by that amount, lead to any particular benefit to the child; and [9] given my finding on these factors – no reasonable excuse for the father’s delay, no blameworthy conduct by the mother, and no asserted impact on the child’s circumstances, which cumulatively point to no retroactive obligation being imposed on the mother, I do not need to consider the undue-hardship point, which would only have been engaged if I had found some obligation on the mother to pay retroactive child support. [ 45 ] By not raising his shared-parenting theory with the mother until 4.5 years had elapsed under this (asserted) new parenting regime, the father lulled the mother into (reasonably) believing that she had no cross-child-support obligations to him over that period i.e. that he was content with the child-support arrangement (s. 3 support payable by him) over it i.e. assuming the father had been correct about having reached the 40 per cent threshold as of February 2019. [ 46 ] On retroactive support not being warranted in these circumstances, see also Morrison v Morrison , 2017 NSSC 163 (Rosinski J.) at paras 3 , 6, 18, and 26-28. [ 47 ] If the father had in fact achieved shared parenting via the February 2019 order, his non-pursuit of support adjustments in a timely way undercut his claims. 3.

Insufficient evidence to set s. 9 child support in any case [ 48 ] In any (further) case, the father did not provide sufficient evidence (from his side) for me to determine the appropriate s. 9 child support i.e. if he had reached the 40 per cent threshold and if I had been prepared to revisit support for February 2019 to the present. [ 49 ] The father asserted that a straight set-off approach was warranted. For the reasons outlined in MacDonald v Brodoff , 2020 ABCA 246 (paras 11-18 and 59-66 ), more is required to justify that approach.

See also TAS v GAS , 2020 ABQB 761 (paras 121-123 ). [ 50 ] For example, the father provided no household budget or other information about his household’s income and expenses. [ 51 ] In his brief, he submitted, in support of a straight set-off approach: There are no increased costs of shared parenting indicated by either party.

There is no indication that there are any considerations in the conditions, means or needs of either household that need to be addressed. [ 52 ] That seems to both overlook the role of the parties in providing evidence on those points and eclipse the Court’s role in deciding what s. 9 support is payable in both directions. C.

Mother’s request for retroactive base child support (2019-2023) [ 53 ] Having confirmed the mother’s primary-parenting role for these years, I return to her request for increased support for those years, anchored on the father’s increasing income. [ 54 ] The mother’s chart (referred to above) accurately reflects the halt in childcare expenses as of the end of September 2019 and the resulting boost in the father’s s. 3 support payments from $624 to $824 monthly from that point on. [ 55 ] I also accept as accurate her calculation of the child support due from the father at his income in each of 2019 to November 2023 and of his net shortfall for those years of $2,070. [ 56 ] Added to the 2011-2018 shortfall of $5,172 (see above), the father’s total arrears are (as reflected in the mother’s overall chart) $7,242. [ 57 ] I will address payment of this amount in my conclusion below.

D. Ongoing base child support [ 58 ] The father’s s. 3 child support obligation for December 2023 and into 2024 shall be $858 (per the last line of the mother’s chart). [ 59 ] The parties shall exchange copies of their tax returns and notices of assessment by June 30 th of each year as long as their child

continues to be a “child of the marriage”, with the father’s s. 3 child support to be recalculated, as necessary i.e. with income changes (if any) reflected in such returns and assessments (standard recalculation clause to apply). E. Retroactive

section 7 expenses [ 60 ] Here are the applicable parts of s. 7 of the Federal Child Support Guidelines : 7

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation : (

f) extraordinary expenses for extracurricular activities.

(1.1) For the purposes of paragraphs (1) ... (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table .... [emphasis added] [ 61 ] The mother seeks income-proportionate division of the child’s extracurricular expenses for 2022 and 2023 and, as I understand it, the same loadbearing for ongoing such expenses. [ 62 ] The parties agree that, for many years and until his death in 2022, the mother’s father provided considerable assistance with the child’s extracurricular expenses (particularly, or exclusively, for hockey and skiing). [ 63 ] Per the mother, she has had to carry those expenses on her own since her father’s death, the father (of the child here) has refused to contribute despite requests that he contribute, the extracurricular amounts for 2022 and 2023 ($6,983.98 and $5,672.21) are reasonable for parties with their respective incomes (father – current income approximately $95,000; mother, current income approximately $70,000), the child is extremely keen on his extracurriculars (now ski racing, football, and rugby), his best interests require that he be able to pursue all of them, and it is high time for the father to pull his weight with these expenses. [ 64 ] Per the father, the mother did not request contributions by him, she should have (i.e. if she wanted him to contribute), and (in any case) the expenses are excessive, with him unable to afford to make any contributions. [ 65 ] I am able to resolve the “consultation or not” point without having to direct a viva voce hearing: I find that the mother had the onus to prove making requests to the father for s. 7 contributions, at least for 2022 and 2023 i.e. after contributions by the child’s grandfather were no longer being made: see Joe-Joe v Joe-Joe , 2023 ABKB 551 at paras 21-45 . [ 66 ] While the mother asserted having made requests, she provided no details e.g. of how, when, or where.

It would presumably have easy to provide copies of emails, texts or letters sent to the father on this subject or to refer (with at least some particulars) to conversations about proposed extracurriculars and asking the father to contribute. [ 67 ] The mother produced a large volume of communications (largely text, with some emails) on the subject of extracurriculars, but none of them reflected any proposals by the mother about extracurriculars for the child or the father anteing up.

Instead, they focused largely on arranging rides for the child, ensuring he had his equipment, commenting on his performance, and other non- proposal, non-financial aspects. [ 68 ] I compliment the parties on their truly joint approach to supporting their child’s extracurriculars in a logistical sense. [ 69 ] Should the father also be contributing financially and doing so in an income-proportionate way, for all of the 2022 and 2023 extracurriculars?

Or bearing some other proportion of those expenses? [ 70 ] For the reasons outlined in Joe-Joe v Joe-Joe (cited above), I might have excused the father from liability for the current s. 7 expenses or reduced his exposure (as was done in that case) i.e. with the mother not seeking the father’s contribution in advance of incurring any such expenses i.e. to give him an opportunity to approve (or not) and contribute (or not). [ 71 ] However, failure to consult does not necessarily lead to immunity, or complete immunity, from s. 7 contributions.

Per Chappel J. in AE v AE , 2021 ONSC 8189 : One of the factors that the court should consider in exercising its general discretion respecting

section 7 expenses is whether the claimant consulted with the other party about the expense and gave them notice before it was incurred ( Park, at para. 26 ). These factors may be considered in deciding whether to order contribution to the expense and also in determining the appropriate amount of the other party’s share ( A.A.A. v. K.N., 2020 ABCA 141 (C.A.) ).

Lack of consultation and notice may be relevant where the payor made financial decisions without knowledge of the claims and would be significantly impacted financially as a result of being unable to plan for the expenses ( Correia, at para. 19 ; Delichte, at paras. 39 and 44 ; Bodine-Shah, at para. 66 ; Krammer, at para. 61 ). However, these considerations are not determinative, and the weight to be given to them will depend on the facts of each case.

Other factors relating to the child’s best interests and the reasonableness and necessity of the expenditure may override any notice concerns ( Bodine-Shah, at para. 66 ; J.A.F. v. J.J.F., 2019 BCSC 507 (S.C.), at para. 62 ; O. v. M., 2021 ONSC 787 (S.C.J.), at para. 29 ). As Price J. emphasized in Douglas v. Mitchell , 2009 CarswellOnt 4751 (S.C.J.), at para. 40 , there are too many factors that may militate against consultation and notice for the court to make them absolute pre-requisites for obtaining an order for contribution to

section 7 expenses . For instance, these considerations may not carry any weight if the payor’s comments and actions made it abundantly clear that consultation would have been a futile and meaningless endeavour ( Oner v. McCormick , 2021 ONSC 5838 (S.C.J.), at para. 36 ). They may also be given little weight where the party against whom reimbursement is sought clearly knew

that the expenses were being incurred and did not raise any objection (Semancik v. Saunders , 2011 BCCA 264 (C.A.) ).

Lack of consultation and notice should be given no weight where the evidence indicates that this was due to intimidation or family violence by the payor. [para 387] [emphasis added] [ 72 ] I find that the absence of consultation is not a complete bar to the mother obtaining s. 7 contributions from the father for 2022 and 2023, for these following reasons. [ 73 ] First, on the evidence here, from 2011 to late 2019, the father made monthly s. 7 contributions ($200) towards the mother’s childcare expenses, as noted above i.e. for over eight years, he made s. 7 contributions of $2,400 annually, with his income at the start of that period being approximately $68,00 and at the end approximately $95,000 i.e. he made those contributions for many years at incomes markedly lower than his current (approximately $95,000) income. [ 74 ] Second, since 2019, when the mother’s childcare expense ceased, the father has not made monthly s. 7 contributions.

Instead, per his October 31, 2023 affidavit, he has made some (limited) ad hoc s. 7 contributions, by covering the cost of certain expenses (net of insurance coverage) e.g. prescriptions, certain tests, and glasses (amounts not specified). For 2022 and 2023, the years for which the mother is seeking retroactive s. 7 contributions, he covered the child’s cellphone bill ($300 each year), plus football-team fees ($325) and Outdoor Education class fees ($160), the latter two for 2023 only. In other words, $300 paid in 2022 and $795 in 2023.

In contrast, the mother paid $6,983.98 (2022) and $5,672.21 (2023) in s. 7 (extracurriculars) expenses. [ 75 ] Third, as noted, the mother’s father appears to have contributed the lion’s share of the child’s extracurricular expenses, or at least for hockey and skiing, for over a decade, through to his death in 2022. (The mother is not seeking retroactive contributions from the father for any portion of the grandfather’s contributions.

Per Hatt v Heather , 2021 ABQB 878 (paras 68-78 ), absent proof that she reimbursement her father for those contributions, she likely would have been unsuccessful in seeking such contributions.) The point here is that the father has effectively received a free ride on the s. 7 (extracurriculars) front, courtesy of the generous grandfather. [ 76 ] Per the father on this point:

Section 7 expenses for extracurricular activities have in the past been a point of contention between the [mother] and me. The difficulty has been that the [mother] wanted to enroll [the child] in hockey and skiing, two of the most expensive activities available, in the winter months. I simply do not have the funds available to pay for these two activities. The [mother] has always been well aware of this, and to my knowledge her father paid these expenses. The [mother] claims that these expenses are a large burden, and I agree with that.

Had the [mother’s] father not paid these expenses, we would not have incurred them . This was the reason that we were able to agree to the activities at [mediation, in 2010, it appears].

It was not something that we would have agreed to as neither the [mother] nor I could have afforded these expenses. ... we had only agreed on these activities because her father was paying for them and ... the expenses would have otherwise been beyond our means and unreasonable . [paras 11 and 12 of his October 17, 2023 affidavit]. [ 77 ] The father may be right that the family would not have opted for hockey and skiing without the grandfather’s assistance. But that does necessarily translate to zero s. 7 expenses otherwise and no contribution exposure for the father at all.

Presumably they would have pursued some kind of extracurricular activities for the child, even if less expensive. [ 78 ] Fourth, both parents accept that extracurriculars (particularly sports) are central to the child’s life.

He has had, and continues to have, a very robust and wide-ranging sporting life, with both parents also agreeing that he has benefitted greatly from it. [ 79 ] Fifth, it is not sufficient for the father to assert (as reflected in the affidavit excerpt above) that “I simply do not have the funds available ...”, “nor could I have afforded these expenses”, and “the expenses would have otherwise been beyond our means and unreasonable” i.e. without providing evidence of his household income and expenses. The mother’s evidence included references to the father’s partner; his evidence was silent about having a partner.

Whether or not he has a partner, he did not include a budget or other window into his ability to make any s. 7 contributions i.e. all aside from whether hockey and skiing (or equivalently expensive activities) are out of reach. [ 80 ] Between the father (currently earning approximately $95,000) and the mother (2022 income approximately $50,000 (possibly increasing due to her returning to more extensive registered-nurse employment after reduced employment in the past few years), the parents have collective income of (roughly) $150,000. [ 81 ] And we are dealing here with only one child, who is now 15 (born October 2008). [ 82 ] If the 2022 expenses ($6,983.98) were allocated two-thirds to the father and one-third to the mother, they would bear $4,655.94 and $2,327.97, respectively i.e. about $400 a month for the father. [ 83 ] Taking the same approach, the 2023 expenses ($5,672.21), the father would bear $3,781.10 and the mother $1,890.55 i.e. about $300 monthly for the father. [ 84 ] I do not see such s. 7 expense as extravagant or exorbitant for parties with these incomes.

Particularly when the father has not had to shoulder ongoing s. 7 expenses since late 2019 (i.e. aside from the noted cellphone expenses) and, on the evidence, has otherwise covered only modest (by comparison to the mother’s expenses) expenses (e.g. the noted football and school-course expenses). [ 85 ] And especially with the father having shouldered $200 in monthly s. 7 (childcare) expenses on a materially smaller income (e.g. approximately $68,000, in 2011). [ 86 ] In all these circumstances, the factors favouring retroactive contributions from the father, proportionate to income, for 2022 and 2023, outweigh the failure-to-consult factor pointing in the other direction. [ 87 ] Especially since a naysaying parent does not have a veto over s. 7 expenses.

Even if the mother had provided advance notice, the father would (presumably, given his stance here) have advised he would not contribute (“not affordable”). The mother could then

have proceeded, assuming Family Docket Court clearance, into regular or special chambers, seeking a court order approving the extracurriculars in question and obliging the father to contribute. [ 88 ] Which is effectively what the mother has done here, albeit after the fact.

The key is that the 2022 and 2023 expenses are, I find, reasonable s. 7 expenses in all the circumstances here and would have been approved, with proportionate load-sharing, if she had sought approval in advance. [ 89 ] All to say: the father is responsible for total 2022-and-2023 s. 7 expenses of $8,437.04, less credits of $1,095 for the noted expenses he has already covered, for a net s. 7 arrears amount of $7,342.04. [ 90 ] I will address payment of this arrears amount in my conclusion below. F. Ongoing

section 7 expenses [ 91 ] For 2024 and onwards, the parties shall attempt to agree on the child’s s. 7 extracurricular activities (i.e. to the extent they are new or required-to-be-renewed activities i.e. are not simply the continuation of existing and already-paid-for extracurriculars) and shall bear the cost of agreed-on activities on an income-proportionate basis. [ 92 ] If the parties are unable to agree on any or all of the proposed extracurriculars, the mother can decide on any contested curriculars. [ 93 ] In any case, the father’s maximum exposure for s. 7 expenses shall be $350 monthly unless he agrees otherwise.

III. Conclusion [ 94 ] As explained above, the mother is entitled to further s. 3 support for the noted years of $7,242 and s. 7 support for 2022 and 2023 of $7,342, for a total of $14,584. [ 95 ] The father shall make minimum monthly arrears payments of $300, which will clear that amount in just over four years. [ 96 ] The mother was successful here. She is entitled to

Schedule C costs of the application (Column 1). Heard in Edmonton, Alberta on November 24, 2023 Dated at Edmonton, Alberta on December 8, 2023. M. J. Lema J.C.K.B.A. Appearances: Lorraine M. Snyder Verhaeghe Law For the Applicant Jordan Bienert Capital City Law For the Respondent