Reinoso v Acevedo, 2022 ABKB 778

Court of King’s Bench of Alberta Citation: Reinoso v Acevedo, 2022 ABKB 778 Date: 20221124 Docket: FL03 66193 Registry: Edmonton Between: Gina Reinoso Plaintiff - and - Demetrio Acevedo Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice C.L. Arcand-Kootenay _______________________________________________________ Introduction [ 1 ] The parties, Gina Reinoso (the “mother”) and Demetrio Acevedo (the “father”), disagree on the father’s income for 2021 and 2022 for

Section 3 and

Section 7 child support.

Issues [2] The issues before me are as follows:

(1) What is the father’s income;

(2) Has there been a change in the father’scircumstances to support a variation of child support ordered; and

(3) Does the father have a legal obligation to pay

section 3 childsupport and

section 7 expenses for the child, Laura Reinoso. Analysis of Facts and the Law [3] Briefly, the facts are as follows:

a) The parties were married on December 31, 2011 and separated on February 19, 2021.

b) There are three children of the marriage: Laura Reinoso, born October 25, 2008, is the mother’s child from a previous relationship. Isabelle Maldonado, born July 1, 2010, who is the mother’s sister, but the mother and father are her guardians; and Saray Acevedo Reinoso, born June 20, 2012.

c) The mother commenced court process through a Notice to Attend Family Docket in 2021. She was subsequently granted leave toapply for parenting, decision making and child support. The mother’s application and affidavit were filed February 17, 2022. The mothersubstitutionally served the father by leaving a copy of the documents with his building manager. The father did not receive a copy of thedocuments until March 6, 2022, although the Court appearance was set for March 4, 2022.

d) Justice Mah granted an Order on March 4, 2022, in the absence of the father, which imputed the father’s guideline income at$100,000 per year.

e) The father now brings an application to vary that Order, to reflect his actual income as the guideline amount for the followingyears: 2021 and 2022. Child Support [4] I am guided by the Divorce Act, R.S.C. 1985, c3, (2nd Supp), s15.1 regarding Child Support Orders, and the Federal ChildSupport Guidelines (the “Guidelines”) in my consideration on the issue of child support. [5] I must consider s. 1(

a) of the Guidelines which states: To establish a fair standard of support for children that ensures thatthey benefit from the financial means of both spouses after separation. I must also consider s.3(1): Presumptive Rule 3(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) The amount set out in the applicable table, according to the number of children under the age of majority to whom the orderrelates and the income of the spouse against whom the order is sought; and (

b) The amount, if any, determined under

section 7. … (3) “Applicable Table” The applicable table is (

a) if the spouse against whom an order is sought resides in Canada, (

i) the table for the province in which that spouse habitually resides at the time the application for the child support order or for avariation order in respect of the child support is made. … Determination of Annual Income 15(1) Subject to section (2), a spouse’s annual income is determined by the Court in accordance with sections 16 to 20. Calculation of Annual Income 16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Totalincome” in the T1 General Form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. [6] As the mother and father both live in the Province of Alberta, the applicable tables are for the Province of Alberta. [7] In D.B.S. v. S.R.G., 2006 SCC 37 , [2006] 2 SCR 231, the Supreme Court of Canada stated the following generalprinciples:

Child support is the right of the child, and a parent cannot barter away a child’s right to support, as per Willick v. Willick, (SCC), [1994] 3 SCR 670. Parents have an obligation to support their children in an amount commensurate with their income, asrequired by the Child Support Guidelines. This obligation, and the child’s right to support, exist independently of any statute or courtorder. [8] Recipient and payor parents both have the responsibility to ensure the correct amount of child support is paid.

While childsupport orders should provide payors with the benefit of predictability, and a degree of certainty in managing their affairs, such orders donot absolve payors or recipients of the responsibility of continually ensuring that the child is receiving an appropriate amount of support. [9] The outcome of child support applications is highly dependent on the facts. [10] In the matter before me, the primary issue for child support is determining the father’s income and quantum. [11] The father is not opposed to paying child support. [12] The father’s evidence regarding his income is as follows:

a) The father works for Chancelot Concrete Restoration Ltd., where he is a salaried employee.

b) The father’s income for 2019 was $72,092, and for 2020 was $42,210.

c) Around September and October 2019, the father was diagnosed with a cancerous tumor on his kidney and underwent surgery toremove the tumor. The father returned to work in October 2020 with reduced hours.

d) The father’s Guideline income for 2021 is $69,361 which consists of employment income, Canada Recovery Benefit andEmployment Insurance. The father’s employment income was $57,435 for this year.

e) The father’s estimated income for 2022 is $52,395 based on his current pay stubs to date. [13] The mother agreed that the father is employed with Chancelot Concrete Restoration Ltd. [14] I accept the father’s evidence in his Affidavit sworn on September 12, 2022. [15] I note it is always difficult to make a finding of credibility or reliability based on Affidavit evidence. [16] I also find English is not the father’s first language nor has he had involvement with family court prior to this application andthe March 4, 2022, date.

These are simply facts that I am mindful of as I use my discretion in moving towards my decision in this matter. [17] I find that there was no evidence from the father before Justice Mah when the March 4, 2022, Order was granted. [18] The father has provided evidence to me, which allows me to decide his actual income for child support purposes, pursuant toSection 2(3) of the Guidelines, which states: “Where, for the purposes of these Guidelines, any amount is determined on the basis ofspecified information, the most current information must be used.” [19] Thus, I do not need to impute income to the father as I base my findings on his current and specified information regarding hisactual income. [20] I find the father’s income has been decreasing since 2020, which is a continuous period of three years to date.

This provides ahistorical, albeit recent history, of income. [21] I am satisfied that a change in circumstances has occurred as provided for in the applicable guidelines, pursuant to s.17(4) ofthe Divorce Act and s.14(

a) of the Guidelines. The evidence before me has resulted in a different table amount for

section 3 and 7 childsupport ordered. [22] I also note that the father has not asked me to address the issue of service, but rather the issue of child support based on anOrder previously granted. Base Table Child Support,

Section 3 [23] Based on the Guidelines, the father’s base table Guideline amount for the period February 2021 to December 2021 is set at$1,009 per month for

section 3 child support for two children at an annual income of $69,361 for 2021. The mother’s income for thiscalendar year was $27,772. [24] The father’s base table Guideline amount commencing January 1, 2022, is set at $757 per month for

section 3 child supportfor two children at an annual income of $52,395. The mother’s income is set at $27,772. [25] If I am wrong regarding the father’s 2022 income, the parties may apply to register this child support order with therecalculation program.

Section 7 Expenses [26] Based on the father and mother’s incomes noted above, the

section 7 expenses for two children will be shared as follows:

a) In 2021, the father 71% and the mother 29%

b) In 2022, the father 65% and the mother 35%. [ 27 ] The items listed in s.7 (1)(

b) to (

f) of the Federal Child Support Guidelines will be included in the term of the order regarding

section 7 expenses. Only those expenses will be reimbursed by either party, upon proof. Is the father legally responsible for paying child support and

section 7 expenses for Laura Reinoso [ 28 ] In

section 5 of the Guidelines , “Where the spouse against whom a child support order is sought, stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child”. [ 29 ] I find that the father has stood in the place of a parent for this child and thus, has a legal duty to support this child. [ 30 ] I am going to exercise my discretion, and vary the child support ordered for this child, based on the father’s Guideline incomes noted above. [ 31 ] I also consider that the biological father has a legal child support obligation of $254 per month to the mother. [ 32 ] Regarding base table

section 3 child support for this child, the father shall pay $341 per month for February to December 2021 and $172 per month commencing January 2022. [ 33 ] The father shall also pay 30% of the

section 7 expenses for this child commencing February 2021. [ 34 ] The items listed in s.7 (1)(

b) to (

f) of the Federal Child Support Guidelines will be included in the term of the order regarding

section 7 expenses for this child. Only those expenses will be reimbursed by either party, upon proof. Arrears [ 35 ] The father will pay $150 per month towards arrears commencing January 1, 2023, and every month thereafter until paid in full. Costs [ 36 ] The parties may speak to costs. Heard on the 21 st day of November, 2022. Dated at the City of Edmonton, Alberta this 24 th day of November, 2022. C.L. Arcand-Kootenay J.C.K.B.A. Appearances: Dotun Abolade, Student-at-Law Philip Law Office for the Plaintiff Judith Acevedo

Brown Law Group for the Defendant