NF v ID, 2023 ABCJ 157

In the Alberta Court of Justice Citation: NF v ID, 2023 ABCJ 157 Date: 20230726 Docket: FF036 000392 Registry: Sherwood Park Between: NF Applicant - and - ID Respondent Reasons for Decision of the Honourable Justice D. G. Hancock [ 1 ] This is an application for Child Support brought by the Applicant Mother against the Respondent biological Father in respect of one child born in July, 2021(“the Child”). [ 2 ] Parenting was resolved by way of a Consent Parenting Order granted February 28, 2023.

The Child lives with Mother who has day-to-day parenting and decision-making (excepting with respect to education and extracurricular activities which, presumably are shared). Father has reasonable and generous parenting time as agreed between the parties. [ 3 ] The child has lived with Mother since birth. Mother and Father were not in a relationship; however, the question of guardianship and parenting is not before the court. [ 4 ] Father acknowledges financial responsibility for the child but relies on a hardship claim to reduce his child support obligations.

Father also requests that access costs be set off against his child support obligations. Mother : [ 5 ] Mother lives in Sherwood Park. She has two living children, one of which is the subject of this application. Her other daughter is 8 years old. The father is not in her life. He was supposed to pay $215.00/month pursuant to an 8-year-old court order and that file is registered with Maintenance Enforcement, however she does not receive any support. She has no contact with that father. The child support amount has not been updated. [ 6 ] Mother works as a cook in a local restaurant making $19.00/hour.

She is hopeful of obtaining an increase soon. Her hours of work can vary due to the nature of the job. She reported 2021 income of $28,321. A portion of her income for 2021 and 2022 was from CPP maternity benefits. Her 2020 reported income was $33,849. She also acknowledged earning tips of between $500 and $700 per month but indicated that began after her recent return to work. She receives the Child Tax Credit of about $1,000 per month. Child Tax Credit is for the benefit of the child and is not taken into account when arriving at Guideline Income.

Based on the information provided it is fair to assess Mother’s Guideline Income at $35,000, given her return to work, increase from earlier hourly rate, and tips. [ 7 ] Mother lives in subsidized housing which assists her with rental costs. She did not provide a budget, but it was clear from her evidence that finances are very tight. She supports her two children and herself. With the numbers she provided her monthly expenses would appear to be between $2,300 - $2,600. That did not include a budget for clothing for her or the children, personal care, costs of

operating her vehicle, etc. Even with the Child Tax Credit, she is barely making ends meet. [ 8 ] Mother returned to work. She provided evidence of the Child attending daycare with a subsidized cost to parent of $315 per month commencing September 2022. Mother also requested payment for swimming fees. No receipts were provided. Father – Income: [ 9 ] Father lives in Slave Lake, Alberta and works in High Prairie. He is a teacher. His income for 2020 was $102,456. He is entitled to a deduction for professional dues in the amount of $1,389, resulting in a Guideline Income for that year of $101,057.

In 2021 he reported income of $102,248.58. Reported professional fees were $1,411, leaving a Guideline Income for that year of $100,838. His Income Tax returns for 2022 were not in evidence. Statements of Earnings and Deductions for 2022 show monthly gross income of $8,425 for most months resulting in a similar Income for 2022 and presumably 2023. The High Prairie School Division Collective Agreement shows Income as at September 1, 2022 at the top of the salary grid to be $102,876 and as at September 1, 2023 at the top of the salary grid to be $104,934.

Father’s evidence was that he is at the top of the grid and has been at all material times. There was no evidence that professional fees have changed. Utilizing those numbers (with the September Income adjustments), Guideline Income for 2022 would be $102,029 - $1,411 or 100,618 and for 2023, $103,562 - $1,411 or $102,151. [ 10 ] Guideline Incomes for the respective years together with

Section 3 child support and

section 7 percentage are: 2021 $100,838 $891.21 74.2% 2022 $102,618 $907.44 75.7% 2023 $102,151 $903.33 74.5% 2023 (as of Sept 1) $103,523 $915.71 76.4% [ 11 ] Father ‘s evidence was that he had been paying $400 per month in child support pursuant to what he termed an agreement with Mother. Mother disputed that it was an agreement, indicating that it was what Father said he could pay. That amount was increased to $500/month pursuant to an Interim Court Order granted October 25, 2022, payments commencing November 1, 2022. Those payments were apparently current as at the time of trial.

Father – Debts/Expenses: [ 12 ] Father gave evidence that he had expenses and debts which made it impossible for him to pay child support at the amounts required by the child support guidelines. He testified to debts incurred for education as well as child support he pays for three other children. He also referenced other debts as well as his living expenses to demonstrate a lack of ability to pay the guideline amount of child support. Education Debt: [ 13 ] With respect to education debt, Father testified that he graduated from university in 2006.

He obtained a job for the following year and has been employed since 2008 with the High Prairie School Division. [ 14 ] It is his evidence that he has a debt of $25,000 owing to his mother, incurred for his education. No documentation of that debt was provided. No terms were provided. He has been working for 16 years and there was no evidence to show that he had made any payments on that debt or that it was a priority to pay it off.

He purchased at least one house, and possibly two, while that debt was outstanding. [ 15 ] Father also testified about returning to university in 2022 in an on-line program for a Master of Arts in counselling. He obtained a Student Loan in the amount of $30,000. It appears from his affidavit of February 15, 2023, Exhibit “B” that a portion of the disbursement, $3,075, was a grant, leaving a repayable amount of $26,925. The program is to be completed in April 2024. No indication was made regarding additional tuition costs or loans relative to the remaining portion of the program.

When asked, Father acknowledged that, as he was already at the top of his salary grid, the additional education would not result in an increase of income from his current employment. Child Support to other children: [ 16 ] Father testified to paying child support for three children from a previous relationship. The children are aged 10, 12 and 13. He shares parenting one week on/one week off. When asked about child support, he testified to a Court Order requiring him to pay $1,035 per month. No Court Order was provided in evidence.

Father’s affidavit, sworn February 15, 2023, Exhibit H, did provide two heavily redacted pages from what purported to be a Support Agreement. [ 17 ] Those pages showed his income at $101,000 and

Section 9 child support of $1,025, calculated by setting off $912/month, presumably from the children’s mother, against his

Section 3 child support of $1,937. [ 18 ] It also identified his

Section 7 proportion at 68.42% and an agreement to pay 50% of certain other expenses which appear to be enumerated, however that page was not included. [ 19 ] We do not know the date of, or parties to the agreement but can make the reasonable assumption that it is with his former spouse. [ 20 ] His affidavit disclosed that the children are active in extracurricular sports including hockey for his son and gymnastics and figure skating for his daughters – a total cost to him of $1,429 in 2022.

[ 21 ] His viva voce evidence was that he participates extensively paying for costs of travel, hotels, gas, meals etc. on his parenting time. His son plays hockey at a higher tier and therefore travel is 2-3 hours to get to games in other communities. He estimated between $400-600 per month for costs associated with

Section 7 expenses. [ 22 ] From his evidence at the hearing, it is clear that Father makes a priority for his other children’s extracurricular activities both financially and with his commitment of time. It was cited by him as a reason why he could not see the Child often. His evidence was clear that he has a different attitude with respect to his obligations to his first three children, described as having been conceived in a loving relationship, than to the Child subject of this application. [ 23 ] Father also expects to have each child requiring braces at a cost of $4,000 each.

The first child already has braces. The other two have just received that news. No receipts or cost estimates were put into evidence. Father confirmed he has Alberta School Employee Benefits but was not able to provide evidence of the coverage other than saying it was minimal. Other Debt: [ 24 ] Father provided statements from his RBC Line of Credit, and his Costco, BMO, and Walmart MasterCards. RBC was at $11,260 as at November 2022, the monthly interest charge was $91.99. Costco balance was $2,683.99. Minimum payment was shown as $77.70.

BMO balance as at December 12, 2022, was $6,921.19, with a minimum payment due of $133. Walmart balance at January 5, 2023, was $4,885, with a minimum payment due of $90. Father’s viva voce evidence was that the debts were all living expenses incurred over the previous 12-18 months. He testified that the balances remained essentially the same as in the statements provided. [ 25 ] None of the debts incurred are debts which were incurred in support of Mother or the Child, other than potentially some expenses incurred on trips for access. There was no relationship between Mother and Father.

Although a Consent Parenting Order has been entered, Father would not meet the test to be a guardian. The Child is essentially the result of one night together. None of the debts relate in any way to caring for the Child or Mother except as noted for periodic access and possibly as he has made support payments and incurred debt for other necessities. Father – Budget: [ 26 ] Father has provided a budget showing monthly expenses totalling $5,472.29. His expenses include $2,250 in housing and utility costs. He purchased a home in or about March 2021, taking on a mortgage of about $268,000.

His evidence was that he used the equity he received from the home he owned with his former spouse. We had no evidence as to what property settlement there was or what assets he had available. The Mortgage Commitment letter tendered as Exhibit 2 would suggest he applied about $40,000 to a purchase price of $299,900. The other expenses are Child Support ($1025); Vehicle, insurance, and gas ($935); Food and household ($600); and debt repayment ($562). [ 27 ] There is no doubt Father’s finances are tight.

Notwithstanding that, he has taken on more debt to further his education, with no immediate plans to enhance his income in result. Is Father entitled to relief pursuant to “undue hardship”? [ 28 ]

Section 10 of the Alberta Child Support Guidelines (Alberta Regulation 147/2005 as amended) allows for the Court to vary a child support award from that which would be required otherwise if the parent requesting the variation “would otherwise suffer undue hardship”. [ 29 ]

Section 10 provides: Undue hardship 10(1) On either parent’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3, 4, 8 or 9 if the court finds that the parent making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a parent or child to suffer undue hardship include the following: (

a) the parent has responsibility for an unusually high level of debts reasonably incurred to support the parents and their children prior to the separation or to earn a living; (

b) the parent has unusually high expenses in relation to exercising access to or parenting time or contact with a child; (

c) the parent has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the parent has a legal duty to support a child other than the child of the parents or a child of the other parent who is a party to the application, who is (

i) under the age of majority, or (ii) of the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; (

e) the parent has a legal duty to support any person who is unable to obtain the necessaries of life due to illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent who claims undue hardship would, after determining the amount of child support under any of sections 3, 4, 8 or 9, have a higher standard of living than the household of the other parent.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards ofliving test set out in

Schedule 2.

(5) Where the court awards a different amount of child support under this section, it must record itsreasons for doing so. [30] It is generally accepted that establishing an undue hardship claim is the onus of the applicant and faces a very high bar.Hanmore v. Hanmore, 2000 ABCA 57 (Hanmore) was cited in support of the application. It provides clear guidance in this area. Atparagraph 10, the decision states: The objectives of the Guidelines are set out in s.1.

The primary objectives are “to establish a fair standard of support for children thatwill ensure that they continue to benefit from the financial means of both [parents] ...”, and “to ensure consistent treatment of [parents]and children who are in similar circumstances”. Such objectives will be defeated if the Courts adopt a broad definition of “unduehardship” or if such applications become the norm rather than applying to exceptional circumstances.

That has been the consistentmessage of the Courts since the Guidelines came into force. ... [31] In paragraph 11 of Hanmore the decision cites Barrie v Barrie [1998] AJ No 640 (QB), Perras J at para. 23: It is clear, in my view, that the wording of s.10 places the onus to establish undue hardship upon the person claiming such.

It is also clearthat this safety valve is also very narrow in scope as the legislation mandates the establishment of not just hardship but undue hardship.“Hardship” in various mainstream dictionaries is defined as “difficult, painful suffering” while “undue” is generally defined as“excessive, disproportionate”. Hence, in order for a claim of undue hardship to be made out, a claimant of such must satisfy the court thatthe difficulty, suffering or pain is excessive or disproportionate - a very steep barrier under the circumstances. [32] Hanmore (para. 9) sets out a two-part test: ...

The first stage requires the applicant party to prove specific facts establishing the undue hardship. S.10(2) sets out a non-exhaustivelist of circumstances that may give rise to such a claim. If undue hardship is established, the applicant must show that his or herhousehold would enjoy a lower standard of living than the household of the other parent should child support not be reduced. However,even where such a finding is made, the Court retains a discretion to refuse to reduce the guideline amount. (See Van Gool v. Van Gool (1998), (BC CA), 166 D.L.R. (4th) 528 (B.C.C.A.); See Adams v.

Loov, 1998 ABQB 511 , [1998] A.J. No. 666, (Q.B.); Walkeden v. Zemlak (1997), (SK KB), 33 R.F.L. (4th) 52 (Sask. Q.B.); Camirand v. Beaulne, (ON SC), [1998] O.J. 2163 (Ont. Gen. Div.). ... [33] Without belabouring the point, it is useful to also refer to Hanmore at para.17: It is evident from these authorities that the burden of establishing a claim of undue hardship is a heavy one. We agree with the commentof Wright J. that the objectives of the Guidelines will be defeated if Courts deviate from the established guidelines without compellingreasons. The hardship must be more than awkward or inconvenient.

It must be exceptional, excessive, or disproportionate in thecircumstances. Further, it is not sufficient that the payor spouse has obligations to a new family or has a lower household standard ofliving than the payee spouse. The applicant must specifically identify the hardship which is said to be undue. A general claim regardingan inability to pay or a generic reference to the overall expense of a new household will not suffice.

We adopt the words of Prowse, J.A.in Van Gool: [51] The onus is on the party applying under s.10 to establish undue hardship; it will not be presumed simply because the applicant hasthe legal responsibility for another child or children and/or because the standard of living of the applicant’s household is lower than thatof the other spouse. The applicant must lead cogent evidence to establish why the table amount would cause undue hardship. [34] Has Father met that standard in the case at hand?

Section 10 sets out a non-exclusive list of factors to be considered. The parent has responsibility for an unusually high level ofdebts reasonably incurred to support the parents and theirchildren prior to the separation or to earn a living. [35] Father clearly has debts and is in an unfortunate financial position. None of those debts were incurred to support the parentsand children prior to separation. The parents did not live together nor incur any joint financial responsibilities.

Father claims educationdebt – but the debt claimed to his mother, for which no documentation or support was provided to the court, would have been incurredyears earlier, and there is no evidence of Father having made or being required to make any repayment. His current student loan debt wastaken on after the Child was born and does not lead to any addition to his income. His other debts, Line of Credit, Mastercards, again donot fit under this consideration.

They have obviously been incurred by Father as he balances his day-to-day desires and obligations.Given his income, debts and obligations, he may need advice on how to budget, prioritize his finances and make better financialdecisions – but none of these is sufficient to suggest that his first priority should be to reduce his obligations to his Child. The parent has unusually high expenses in relation to exercisingaccess to or parenting time or contact with a child. [36] This consideration has two aspects for Father.

He testified to considerable expenses (and time commitment) in respect of theextracurricular activities of his three children from a previous relationship. In particular, his son, playing hockey at a higher level,involves costs including travel, accommodation, meals, etc.

[ 37 ] He also claims that the cost of exercising his parenting time with the Child results in him not being able to exercise his parenting regularly. He has to travel from Slave Lake to Sherwood Park, possibly take overnight accommodation, pay for meals, etc. The evidence indicated he sometimes stays with a girlfriend when he comes to Edmonton, Sherwood Park. [ 38 ] He does not exercise parenting time often, which he explained was due to many weekends being occupied with his son’s hockey and other extracurricular activities with his other three children.

No explanation was provided as to why he could not align parenting time with the weekends he does not have his other children. [ 39 ] Evidence from both Mother and Father made it clear that no attempts had been made to determine whether Mother would drive one way or make any accommodation to make parenting time easier for Father. In short – it is quite apparent that Father does not consider parenting time with the Child a priority and has not made it a priority. [ 40 ] The claim for a set-off of costs against his child support obligations is not credible.

He can make the time to travel with and pay the expenses for his other three children for their extracurricular activities, but not for parenting time with this Child. The parent has a legal duty under a judgment, order or written separation agreement to support any person. [ 41 ]

Section 10(

c) and the following 10(

d) require consideration of other legal obligations of Father and the impact they may have. As noted above, Father was married and has three children from that relationship. We do not have evidence as to when that relationship ended, however, it is clear that the three children are older than the Child. [ 42 ] The Mortgage Commitment Letter entered as Exhibit 2 is dated March 2021, so presumably the relationship ended some time prior to Father being in a position to use proceeds of that settlement for the purchase of a new home. [ 43 ] Father clearly has support obligations for four children!

His legal requirement to support the first three does not alleviate the needs of the fourth. As noted above, undue hardship is not to be presumed simply because he has other preceding legal obligations for his other children. There must be “cogent evidence to establish why the table amount would cause undue hardship.” ( Van Gool ) [ 44 ] It should be noted that child support for the Child is not calculated as a factor of the other three children. They are in separate residences. There is no economy of scale to be had.

Section 3 of the guidelines provides the Presumptive rule: 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 order relates and the income of the parent against whom the order is sought, ... [ 45 ] Child Support for the Child under this application is calculated according to the

schedule unless there is a good reason to vary. It is not calculated based in any way on the other three children. As noted in Ewing v Mallette, 2009 ABCA 128 at para15: ...one must keep in mind that a previous order applicable to a child of a different relationship will generally not be before the Court and, accordingly, will not be capable of variation when an application is brought pertaining to a second child living in a separate residence. Circumstances may have significantly changed as to a payor’s capacities since the prior order was made.

For example, all material circumstances and available evidence should be considered when a payor is asserting hardship, so any motion for relief should be on notice to all parties liable to be affected. ... Conclusion: [ 46 ] It is safe to say, after hearing the evidence provided, that it is not the Child which has resulted in any financial stress Father may have.

Incurring a significant student loan, without any plan or indication that he would be able to earn additional income, and while he already was aware of his financial challenges evidence that he did not consider himself to be in financial distress. [ 47 ] While he has obligations to his other children – he cannot prioritise them and ensure they can undertake activities at additional expense while claiming he cannot make basic payments to support his additional Child. [ 48 ] The fact that Father drives from Slave Lake to High Prairie to work each day (120+km, 1-1.5 hours each way?) suggests some changes which he could make to reduce the draw on his resources.

There may be other ways that he can deal with his finances to reduce the interest impact of his current debt. [ 49 ] The provisions of

Section 10 are not exhaustive, however there was no other evidence to suggest other rationale for granting a hardship claim in this matter. [ 50 ] Given that undue hardship has not been established, the second part of the test is unnecessary. Notwithstanding that, it is also clear from the evidence that Father’s income ($102,000) significantly out balances Mother’s ($35,000). Father has long-held employment and is continuing his education beyond his initial university degree. Mother struggles in the service industry.

He makes a mortgage payment and builds equity; she pays subsidized rent but the net difference each month is within $400. He supports three children living with him 50% of the time; she has two children 100% of the time. The calculation provided showing a household income ratio favouring Mother does not appear to accurately depict the quality of life in the two households. There is clearly an imbalance which points to a need for Father to pay his child support at the appropriate level so that his fourth Child can enjoy a quality of life closer to that of her Father and her three siblings.

[ 51 ] Father’s child support obligation to the Child commences at birth, July, 2021. [ 52 ] Father should have paid child support at the rates set out above for each of the respective years, commencing August 1, 2021. [ 53 ] Father has paid

Section 3 child support in the amount of $400/month from birth to October 2022 and $500/month commencing November 2022. [ 54 ] In the result, arrears in respect of

Section 3 support are owing as calculated below: Owing Paid Outstanding 2021: 6 months x $891.21 = $5,347.26 6 months x $400 = $2,400 $2,947.26 2022: 12 months x $907.44 = $10,889.28 10 months x $400 + 2 months x $500 = $5,000 $5,889.28 2023: 6 months x $903.33 = $5,419.98 6 moths x $500 = $3,000 $ 2,419.98 Totals: $ 11,256.52 [ 55 ] July and August 2023

Section 3 child support is payable at $903.33/month. Effective September 1, 2023, and continuing thereafter until further order of the court or recalculation under the recalculation program,

Section 3 child support will continue at $915.71 per month. [ 56 ] Mother has been on maternity leave and therefore childcare costs were not incurred (or requested) prior to September 1,

Section 7 costs include childcare. She pays $315 after grant and subsidy. Father’s share for 2022 is 75.7% and for 2023 to August is 74.5%. Commencing September 2023 Father’s

Section 7 share is 76.4%. [ 57 ]

Section 7 arrears are calculated as: 2022 4 months x $315 x75.7% = $953.82 2023 6 months (to June 30) x $315 x 74.5% = $1,408.05 [ 58 ] Going forward

Section 7 expenses shall include child care, any health expenses over and above those covered by health plans, extraordinary education expenses, and extracurricular expenses at an equivalent level to those incurred by Father’s other three children. Mother shall advise Father prior to registering the Child in any extracurricular activity for which she is requesting contribution, letting him know how much the fees and costs will be, and when they are to be paid. Father shall pay his share of

Section 7 expenses within 30 days of receiving a receipt from Mother evidencing her payment of the expense. [ 59 ] Arrears total $13,618.39 and shall be paid at a rate of $150 per month commencing July 1, 2023 and continuing until fully paid. [ 60 ] The Order will contain the required Maintenance Enforcement and Recalculation Program clauses, as well as a clause requiring the parties to exchange their income information for the previous year on or before June 30 in each year. Heard on the 9 th day of May, 2023. Dated at the Hamlet of Sherwood Park, Alberta this 26 th day of July, 2023. D. G.

Hancock A Justice of the Alberta Court of Justice Appearances: Self-represented for the Applicant C. Stark

for the Respondent