Hovasapyan v Vardikyan, 2023 ABKB 397

Court of King’s Bench of Alberta Citation: Hovasapyan v Vardikyan, 2023 ABKB 397 Date: 20230630 Docket: FL03 66570 Registry: Edmonton Between: Sergey Hovasapyan Applicant - and - Arevik Vardikyan Respondent _______________________________________________________ Endorsement of the Honourable Justice M. J. Lema _______________________________________________________ I. Introduction [ 1 ] A father seeks access to his son, now 13, after 11 years without contact. He also seeks reduced-income adjustments to his child support obligation for 2020 and 2021. [ 2 ] The mother opposes on both aspects.

[ 3 ] I find that no father-son access is currently warranted or any until the father has been assessed as fit and capable of having beneficial contact with the son, the son has received adequate “exploratory reunification” counselling, the parties agree on further reunification steps or the Court orders same (factoring in the views of the reunification expert and the son himself), and the mother’s allegations of family violence against the father are examined in a viva-voce- evidence setting. [ 4 ] On child support, I find that the father waited too long to seek adjustments here. I.

Background [ 5 ] The parties were married in Armenia in 2008. They were living there when their son was born (May 2010) and through to 2012 and 2013, respectively, as detailed below. [ 6 ] Their evidence conflicts about the disintegration of their relationship there in or around 2012. The father contends that the mother ended the relationship by acts of violence towards the child and of infidelity, plus verbal abuse of him (the father). He says that, in their closing phase, she told him that he was not the child’s father.

He says he was shocked by this news and, after a brief crisis period, decided to relocate to Canada on his own i.e. abandoning an earlier plan for all three to move here. [ 7 ] The mother says that their relationship featured frequent violence by the father against her, that they nonetheless remained an intact family, that their plan had indeed been for all three to relocate to Canada, and that the father unilaterally decided to move to Canada, leaving her and the child in Armenia and without any knowledge, at least initially, of his whereabouts. [ 8 ] It is common ground that the father moved to Alberta in September 2012 and that the mother and child moved to Ontario in May 2013 and that the parties had no contact of any kind until 2016, when the mother, assisted by Ontario counsel, served the father in Alberta with an application for child support, resulting in a Provincial Court of Alberta order for $500 in monthly child support. (In 2015, the mother had obtained a sole-custody parenting order from the Ontario Court of Justice, with substitutional service on the father authorized and accomplished (i.e. served per the service order) albeit (per him) not actually reaching him.) [ 9 ] Per the father, the mother’s bid for child support was a surprise, as he was unaware she and the child were in Canada and, in any case, was unwarranted in light of her “not the father” statement to him.

Per the mother, it was the father who insisted, at this point, that he was not the child’s father. [ 10 ] In any case, a DNA test confirmed the father’s status as such, with the noted child support order resulting. [ 11 ] Per the father, he made various attempts in the intervening (2016-2023) years to connect with the child, each time being stymied by the mother (“child not available”, “child sleeping”, “child does not want to talk to you”). [ 12 ] Per the mother, the father had no contact with her or the child until spring 2023, when she received a LinkedIn message from him asking for her email for “service of legal documents” purposes.

She declined to provide it, leading to a substitutional service order on her and the eventual service of the present application on her. [ 13 ] The parties were divorced in March of this year, per an Ontario Superior Court of Justice order. [ 14 ] As noted, the mother opposed the father’s access application. In her affidavit, she also referred to various cross-relief including disclosure from the father, disclosure-dependent adjustments to child support, and the payment of child-support arrears.

However, she did not file a cross-application for any of that relief. [ 15 ] At the recent application, I ruled that our Court has the jurisdiction to hear the father’s application and that, in the absence of a cross-application, none of the mother-sought cross-relief was available. [ 16 ] The focus of the application was accordingly on the father’s bid for access and child-support adjustment. [ 17 ] At the end of the application, I gave both parties (father self-represented, mother represented by counsel) the opportunity to file cases bearing on access after long absences of a parent or guardian.

Both sides took the opportunity to provide cases on this subject. II. Analysis A.

Best interests of the child (statutory provisions and key evidence) [ 18 ] The father’s access application engages the “best interests of the child” test. [ 19 ] Subsections 16(1) and (2) of the Divorce Act makes those interests paramount here: 1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. 2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. [ 20 ] Subsection 16(3) provides a non-exhaustive list of best-interests factors.

I reproduce the relevant (or potentially relevant) factors below, with a brief (factor-by-factor) synopsis of the evidence:

3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development , such as the child’s need for stability; EVIDENCE : The child is now 13. He has not had any contact, of any kind, with the father since September 2023, when he was 2 years old. For what has presumably been the entirety of his “remembered life”, he has known, and been parented by, only his mother.

Per the mother: “[The child] does not know [the father]; [the father] is a stranger to him. [The child] … has told me he does not want anything to do with [the father].” Per the father: “ My son cannot have an objectively good reason to disfavour me. … [The mother] mentioned in her affidavit that my son doesn’t want to talk to me or have any relationship. Something she has been saying since November 2012 when my son was only 2 years old. I have attached in my application a picture taken in September [2012] of my son with me. How can a child of 2 years old who adored his father suddenly change his mind.

The alienation factor is obvious. [The mother’s] alienation actions need to be accounted when considering the best interest[s] of the child.” [emphasis added] (

b) the nature and strength of the child’s relationship with each spouse … ; EVIDENCE : See above. (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse ; EVIDENCE : Concerning access to date, the mother’s evidence is that the father did not seek any access or contact after leaving for Canada in fall 2012 until his spring 2023 application for access i.e. she did not prevent any access attempts by him, with none made.

As for future access, citing violence by the father (discussed further below) and the 11 years without contact, the mother sees no possibility of a father-son relationship here and is thus unwilling to support the “development and maintenance” of the child’s relationship with the father. Per the father: I have been asking [the mother] to let my child talk to me at least online. She kept saying that the child was sleeping or not wanting to talk to me. Later she told me that I can have access to my child only if I live with her. I haven’t spoken to my child since September 2012 when I moved to Canada.

In his submissions at the recent application, the father said that his current spouse “will testify to my efforts to talk to my son.” However, he did not provide an affidavit from her, and his application did not refer to evidence in any form from her or seek leave for viva voce evidence from her at the application. (

d) the history of care of the child; EVIDENCE : See above – care exclusively by mother since fall 2012. Per the father: “I … provided a living for [the mother] and my son since the day he was born. We lived together until September 2012 when I moved to Canada. …” The father did not provide any evidence of his involvement (or otherwise) in the day-to-day care of his son from birth to his (the father’

s) departure for Canada. (

e) the child’s views and preferences , giving due weight to the child’s age and maturity, unless they cannot be ascertained; EVIDENCE : As noted above, per the mother, the child “does not want anything to do with” the father. As noted, per the father, alienation by the mother has occurred and is the only possible explanation for the son’s reported position. The child does not have his own counsel. Neither side referred to the possibility of retaining counsel for the child. The mother suggested a voice-of-the-child report may be useful. No evidence was offered from counsellors, physicians, teachers or others who may have offered a window into those matters. (

f) any plans for the child’s care ; EVIDENCE : the mother did not provide any particular details of her care plans, other than (inferentially) that her care to date would continue “as is” and without any involvement by the father. The father’s short-term plan is for supervised in-person access, in Ontario, every two months, plus online access once a week, plus a one-week vacation with the child, starting fall or winter 2023, as well as access to medical and school records, contact with teachers, and shared decision-making.

In other words, under his (short-term) plan, day-to-day care of the child would remain with the mother. He did not offer any particulars of the care he would offer during his access connections. Longer term and depending on how the father and son reconnect, he said that, assuming a good bond develops, he intends to move to Ontario, close to the mother, and eventually seek shared parenting, albeit without offering any (even tentative) care plan for any such parenting. Per his affidavit filed May 19, 2023: “I do not intend the disrupt the ordinary life of my child.

I will move to Ontario if I am granted the custody or visit from time to time if granted access / visitation rights.” (

g) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; EVIDENCE : I infer from the mother’s long span of what appears to have been largely solo parenting and from absence of evidence from

the father impugning her care of the child that she has offered and will continue to offer (at minimum) adequate care for the child. As for the father, he has not been involved in caring for the child, in any way, since 2012, when the child was 2. He referred at the application to his new spouse having a child (from another relationship), but he did not offer any evidence of being involved in the care and raising of that child. (

h) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate , in particular with one another, on matters affecting the child ; EVIDENCE : As noted, the mother opposes any contact between father and child. As noted, her evidence is that she did not block “father access”, with none requested.

Per the mother, at or around the time the father served the current application, he “sent me a message I found quite frightening and intimidating, stating that this was my ‘last chance’ to ‘normalize our relations and come to agreement’, failing which part of his legal expenses would be deducted from child support.

Considering that we do not have any contact with each other whatsoever, I did not know which ‘relations’ he proposed to ‘normalize’.” On this “cooperation” (or non-cooperation) factor, she also pointed to the back-and-forth LinkedIn messages with the father in which he asked for her email address “to serve you with legal documents” but declined to provide any details of those documents (“I will provide all details [i.e. later]. ….” As noted, the father says that the mother refused to cooperate in arranging even remote access between father and son.

Per his affidavit filed April 13, 2023, “… [the mother] has been hiding my son from me since [arriving in Canada in 2013] [emphasis added]. Per him, he has not had any opportunity to demonstrate cooperation in child matters. (

i) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; …. 4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor. EVIDENCE : Per the father, the mother “hit the child in the head [a] couple [of] times when the child pulled her hair when he was slightly over 1 year old.” Per the mother: “When we were living together in Armenia, [the father] physically assaulted me on numerous occasions. He frequently exhibited violent and aggressive behaviour, and had a temper that he could not control.

I feared that he would behave the same way toward [our son].” In response, the father said: “I swear and will swear on oath that I never raised a hand on her ….” [ 21 ] Subsections 16(5) and (6) address the impact of “past conduct” and the “maximum contact” principle: 5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. 6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

B. Contact with father not in child’s best interests presently [ 22 ] The evidence does not show that father-son contact per the father’s proposed plan (starting with supervised in-person access every two months and online weekly access) is in the child’s best interests:

• the father has not had any contact with the child in 11 years i.e. since the child was 2 years old. That alone dictates great caution here, with the father effectively a stranger to the child. • the father’s explanations for the 11 years of no contact are unconvincing. Concerning the alleged “you’re not his father” statement by the mother, even if she said it, why did he act as though it were necessarily true? Given the eventual DNA confirmation of parentage, why did he not react by asserting his parentage and, if disputed by the mother, asking or arranging for a DNA test immediately?

His apparently unquestioning acceptance of the mother’s assertion (if made at all) undercuts or minimizes his dedicated- and-involved-parent-in-Armenia assertion.

As it was, after his “crisis” period in Canada (i.e. after (per him) receiving this “not his father” news), per his own evidence the father effectively moved on, establishing a relationship with his current spouse, taking no steps to vindicate his parentage, and apparently making no efforts to find out what was happening with the mother and child i.e. between 2012 (his arrival in Canada) and 2016 (the mother’s service on him of a child-support application in Ontario). • As for his asserted efforts to connect with the child after learning of that application in 2016, the father provided no corroboration e.g. copies of LinkedIn messages to the mother, copies of correspondence of any kind with the mother’s Ontario counsel (whose contact coordinates the father received as part of the child-support materials), evidence of Facebook communications (the mother gave evidence of a Facebook linkage between her and the father), or otherwise.

He did not provide phone bills showing calls to the mother’s number in Ontario. He did not provide the dates of any such outreach attempts, not even the year(s). He referred to his current spouse as being able to “testify” to such outreach attempts, but he did not tender an affidavit form her or arrange for a viva-voce- evidence-permitted application. • Most tellingly, he did not bring an application for access until seven years had passed i.e. from early 2016 to spring 2023.

If the father had truly been trying to contact his son and the mother had actually been stymying his efforts, why did he not bring an application for so many years? • The father has not shown that he made any real or sustained efforts to contact his son through the years.

Instead, the weight of the evidence is that he abandoned the mother and child in 2012, was effectively indifferent to their fate or status between then and 2016, and made no or only lacklustre, efforts to connect with the child after receiving contact information for the mother in 2016, all through spring 2023. • In other words, the father has not offered any real (convincing, plausible, intelligible) explanation for no contact with his son for the last 11 years. Or why he is now seeking contact.

Or why any renewed contact would not be abandoned again; • per the mother, the child wishes to have no contact with the father. The precise reasons are not clear at this stage, and his wishes may be different after exploratory reunification steps (discussed below). For now, his opposition to contact is a material factor, especially given his age (13); • per the father, his “main concern” is “who is [my son] living with? Who is the partner of [the mother]? Is there any risk for my child. Maybe that person is a pedophile.

I have no information about who my son is living with.” However, the father gave no evidence to ground that suspicion or why this concern surfaces only now; • the father lacks insight into his initial abandonment and later effectively-no-contact decisions here.

As noted above, he asked “How can a child of 2 years old who adored his father suddenly change his mind[?] The alienation factor is obvious.” Has he considered that his son’s change of mind (which may not have been sudden) was connected to the father’s 11-year absence? • on the “alienation” aspect, the father produced no evidence of any statements or actions by the mother having, or possibly having, an alienating effect.

Yet his follow-up submissions and cases were almost exclusively concerned with alienation and that (per him) as the obvious and exclusive cause of the child not wishing to have contact; • the father did not provide evidence of how he would propose to engage with the child i.e. other than try to find out, through him, whether the mother’s partner is a pedophile. And he did not refer to any particular attributes he would bring to any connection with his son (patience, attentiveness, etc.) or to any track record in building or maintaining a rapport with other children.

He stated at the application that “the child needs his father … the only person who really suffers [here] is the child.” Without knowing much, if anything, about his son as a 13-year-old or about his life since 2012. And without recognizing that the son may have understandable reasons for not wishing to connect with the father after all these years.

Or that what the son might actually need is for his exceptionally- long-absent father to stay out of his life i.e. not upset whatever stability the mother and son have established over the years i.e. that the benefits of contact now might be outweighed by its disadvantages; • I am not able to decide, in this affidavit-evidence context, where the truth lies on family violence.

But the cloud cast by the mother about the father’s alleged violence against her, including when she was pregnant with the child, tells against any contact with the father i.e. at least until a future hearing where the truth of the allegations and counter-allegations can be determined.

I note here, on the father’s allegation against the mother, that he apparently took no steps to circumscribe or otherwise arrange for oversight of the mother’s parenting or to ask for any investigation, by any responsible authority, into perceived misconduct by her; and • at the application, I raised the subject of reunification therapy or at least exploratory reunification steps i.e. as a possible first step here.

The father advised without hesitation that he “will pay for [any such therapy].” However, in his follow-up materials, he advised as follows: I learned about reunification therapy, and its cost which turned out to be more expensive than I anticipated. I simply cannot afford it at this point.

I found out that in many cases the unwilling parent sabotaged the process and delayed the reunification process for years. [Here, an insinuation that the mother would do that here.] … I ask Your Honour to assign all costs of the reunification therapy to [the mother]. … That will be fair not only from the financial perspective given the amount of my net debt (I simply cannot afford it) but will motivate [the mother] not to sabotage the process and delay the process of reunification.

The father did not provide evidence of who he approached on the reunification front, the estimated costs, or of his “net debt: and [ 23 ] All in all, the father failed to show that contact between him and the child is in the child’s best interest presently. C.

Next steps [ 24 ] No father-son contact is warranted until (at minimum) a trial or other viva voce hearing can determine the truth of the family- violence allegations against the father. [ 25 ] As well, I find that the father’s lack of insight into his initial abandonment and (later) effectively-no-contact decisions, his assumption (without any basis) of alienating behaviour by the mother, his equally groundless concern about “pedophilia”, and his assessment (from the outside) that “the child needs [me]” all raise red flags about his judgment, self-awareness, sense of empathy, and ability to put his son’s interests first. [ 26 ] No contact is warranted until the father undergoes assessment by an accredited psychologist as to his suitability to engage in any form of (positive, beneficial) contact with his son. [ 27 ] Or until the son has had the opportunity to connect with a reunification expert in his community in Ontario to discuss possible reunification scenarios, the pros and cons of each, the son’s willingness to explore any of them, and what first steps might be considered on any recommended track, including any recommended counselling for the son, all without any involvement of the father at the outset.

Or, once those exploratory sessions have concluded, until the parties agree on the details of a father-son reunification pathway or, failing agreement, the Court determines that further reunification steps should be pursued. (One key factor here would presumably be the son’s wishes as to contact.) [ 28 ] The father shall pay the costs of his own assessment and for these exploratory reunification steps.

If further reunification steps are agreed to but the parties do not agree on cost-bearing, or if the Court directs further such steps, the Court will decide who will pay what proportion of those steps. (I note the father’s “cannot afford” submissions and his request that the mother bear all reunification costs.

In the circumstances of this case, and particularly the father’s initial abandonment of the child for four years and seven more years of no real contact efforts, it falls to him to pay for the preliminary steps outlined above, even if it takes him some time to mount the resources to do so.) [ 29 ] I draw support for my no-present-contact and necessary-preliminary-steps conclusions from JN v LG , 2015 BCSC 2603 (Donegan J.), examining a five-year parental absence (see generally paras 108-135 and particularly paras 116, 126, 127, 131 and 132 (reproduced here)): There was some disagreement about the relevance of L.G.'s past conduct to these proceedings.

L.G. asserts that his past conduct is not relevant. He is now willing to do whatever it takes to play a role in his son's life. He has been trying to regain contact with him for two years now. While I accept L.G.'s current sincerity, I find that L.G.'s past conduct is highly relevant to a determination of the Child's best interests. His complete abandonment of his family for five years significantly calls into question his ability to act as a parent to the Child and/or his ability to carry out responsibilities towards the Child under any access or contact order.

The allegations of emotional and physical abuse are also relevant. I appreciate they are disputed and will have to be resolved at trial. … it is for the court to determine whether it is in the Child's best interest to permit any interim contact between father and son and, if so, under what conditions. At this early stage of the litigation, there is insufficient evidence to support a finding that interim access or contact between L.G. and the Child would be in the Child's best interest. Assessments from qualified experts are required.

The evidence discloses unresolved issues with respect to potential historical family violence that also need to be explored and examined. The evidence is also deficient in respect of any meaningful explanation of L.G.’s five-year abandonment of his son. In the absence of expert evidence, real questions remain unanswered about L.G.'s willingness and emotional and psychological ability to parent. The answers to these questions are critical to a determination of whether L.G. should have contact with the Child and, if so, under what conditions. Many of these questions can best be answered by the opinion(

s) of a properly qualified expert(

s) in the context of a s. 211 assessment or other similar assessment. In the absence of these important assessments, I am not satisfied interim contact would be in the Child's best interest. I am of the view that an assessment by a properly qualified psychologist into L.G.'s emotional and psychological state and ability and willingness to parent to satisfy the needs of the Child is required before any determination can be made about the Child's best interest, even on an interim basis. Pursuant to s. 16 of the Divorce Act , I order that L.G. has no interim access to the Child until further order of the court.

He is granted leave to re-apply for interim access following the production of an assessment and an opinion by a properly qualified psychologist regarding his emotional and psychological fitness to exercise access to the Child, the needs of the Child and L.G.'s ability and willingness to satisfy the needs of the Child. I further order that L.G. be restrained from communicating, directly or indirectly, to the Child that he is the Child's biological father.

L.G. is granted leave to apply to have this order set aside upon production of an assessment and an opinion by a properly qualified psychologist regarding the impact of such a revelation on the emotional and psychological health of the Child and how best to minimize any harm to the Child should such a revelation occur. [emphasis added] [ 30 ] For an example of a comprehensive counselling plan for a child after a six-year separation from a parent, see Nijjar v Gill , 2017 BCSC 1362 (Griffin J. as she then was) at paras 249-261 . D. Child support adjustments

[ 31 ] As noted, per a 2016 Provincial Court order, the father had to pay $500 in monthly child support. The same level of support was required by an early 2017 PC order. Neither order referred expressly to the father’s income level. [ 32 ] Per the father, $500 was the appropriate child-support amount for 2016-2019. At some point in mid- to late 2019, he said he lost his job, with his income for 2020 and 2021 limited to government benefits (plus a small RRSP withdrawal in 2021).

His total income in those years was $27,306 and $17,504, respectively. [ 33 ] He says that Maintenance Enforcement Program officials agreed to a reduction in the child support payable, as of the start of 2020, to $200 monthly, albeit with the $300 difference accumulating as arrears. [ 34 ] He seeks now to cancel those arrears for 2020 and 2021. [ 35 ] The mother argues that the father has not fully reported his income in those (and other) years.

As noted, she seeks further disclosure, which she will have to pursue (if the father balks at producing it) via separate application. [ 36 ] For now, the issue is whether the father can revisit his 2020 and 2021 child-support obligations i.e. seek to square those obligations with his tax-reported incomes in those years. [ 37 ] The answer is no. [ 38 ] The reason is the Supreme Court of Canada’s decision in Colucci v Colucci , 2021 SCC 24 . [ 39 ] The father seeks the second form of relief discussed in that case i.e. “a retroactive decrease in support because of a past change in circumstances.

The paradigmatic change is a drop in income that impacts the payor’s ability to make payments as they come due. In such circumstances, the existing order or agreement overestimates the payor’s income” (para 30(2)). [ 40 ] I do not have evidence of the father’s income in 2016-2018.

His 2019 income was approximately $64,000. [ 41 ] I will proceed on the bases that the father’s income in 2015 and 2016 (i.e. the apparently basis for the 2016 and 2017 child support orders) squared with monthly support of $500 and that his noted incomes in 2020 and 2021 were materially lower than those incomes. [ 42 ] In other words, that the threshold requirement of a material change is satisfied here (see paras 59-62 of Colucci ). [ 43 ] The competing tensions between the payor’s wish for flexibility (child support to decrease with lower income) and the recipient’s wish for certainty (expecting child support to be paid in line with child-support order) were explored in para 78: … in a claim for a retroactive decrease, as indicated in D.B.S. , at para. 98, the interest in certainty lies with the recipient parent and child, while the interest in flexibility lies with the payor parent.

Under the Guidelines , the payor is only responsible for child support commensurate with income, but a retroactive reduction in support means a disruption to the certainty enjoyed by the child and the recipient. The recipient is entitled to expect that the existing order will be complied with unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred. Again, the payor holds the relevant information and knows when there has been a decrease in income.

It is in the payor’s own best interest to use this knowledge to notify the recipient of the change in circumstances and take steps to formally vary a child support order. [ 44 ] The SCC summarized the overall test for retroactive “decreased income” adjustments as follows (para 113): … where the payor applies under s. 17 of the Divorce Act to retroactively decrease child support, the following analysis applies: 1) The payor must meet the threshold of establishing a past material change in circumstances .

The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice. 2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary .

In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation. 3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice , or a later date where the payor has delayed making complete disclosure in the course of the proceedings. 4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair .

The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (

i) whether the payor had an understandable reason for the delay in seeking a decrease ; (ii) the payor’s conduct ; (iii) the child’s circumstances ; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased) . The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct. 5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified.

The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines . [emphasis added] [ 45 ] In the present case, the first seeking-to-adjust-support notice from the father to the mother apparently came in spring 2023, when he served the family-docket endorsement and his application on the mother. He apparently did not advise her earlier, informally, of his intention to adjust his 2020 and 2021 child support payments or, if he did, the reason i.e. his reduced income.

[ 46 ] Nothing in the record reflects communication by the father to the mother on either aspect.

Presumably the mother learned, via MEP, that the father’s payments were being reduced to $200, but she also would have understood that the monthly $300 difference (i.e. between $500 and $200) would continue to accrue. [ 47 ] I cannot infer, in these circumstances, that she knew, or should have known, that the father’s income had necessarily decreased or, if it had, that it was necessarily the reason for the MEP-authorized drop in payments or how long any decrease was expected to continue or whether the father anticipated income upswings that would allow him to catch up on the accumulating arrears. [ 48 ] As emphasized in Colucci , it was the father’s practical duty here (i.e. even without an exchange-tax-information duty in the support order) to keep the mother abreast of his income from time to time i.e. if he wanted support to drop with income decreases. [ 49 ] With no earlier-than-formal (i.e. via-application) notice to the mother here i.e. with the father waiting until spring 2023 to seek, and notify the mother about, child-support adjustments back to 2020 and 2021, her “certainty interest” trumps his “flexibility interest.” [ 50 ] The father did not offer, and I cannot see, any reasonable explanation for his delay on this front.

Or that he has displayed exemplary or otherwise best-efforts conduct here on the support front. Or that the child would not now benefit from payment of the shortfall support from 2020 and 2021.

Or that (with limited financial disclosure of the father’s current financial circumstances e.g. no statement of assets and liabilities and no information about his spouse’s income) he will experience hardship if the 2020 and 2021 shortfall support is not cancelled, or that any hardship would not be outweighed by that experienced by the mother and child in receiving less-than-expected support. [ 51 ] The father may believe that the accumulated arrears should be cancelled i.e. to pursue the third form of relief discussed in Colucci (para 30 (3)).

However, he has not sought such relief here, and given his age (42), apparent good health, and current employed status, it is unlikely he would be eligible for such relief: Haisman v Haisman , 1994 ABCA 249 at paras 26 and 27 . III. Conclusion [ 52 ] For these reasons, no father-son contact is presently authorized, the preliminary steps outlined above must occur before any contact can be considered, and no adjustment of 2020-2021 child support is warranted. [ 53 ] The mother is entitled to her Schedule-C-level costs for the application. Heard in Edmonton, Alberta on the 9 th day of June, 2023.

Dated at Edmonton, Alberta this 30 th day of June, 2023. M. J. Lema J.C.K.B.A. Appearances: Sergey Hovasapyan Self-Represented Applicant Kathleen Nielsen Healey Law Office for the Respondent Mother