Joe-Joe v Joe-Joe, 2023 ABKB 551

Court of King’s Bench of Alberta Citation: Joe-Joe v Joe-Joe, 2023 ABKB 551 Date: 20230929 Docket: 4803 147763 Registry: Edmonton Between: Grace Kpadeh Joe-Joe Applicant - and - Joseph Forkpayea Joe-Joe Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice M. J. Lema _______________________________________________________ I. Introduction [ 1 ] A child-support recipient applies to increase the payor’s contribution to

section 7 expenses, particularly $10,000 in annual tennis-related expenses for their 15-year-old daughter, which are much higher than where she first began training. In part that would involve lifting a $1,200 annual cap imposed in 2021 on the payor’s contribution to s. 7 expenses. On the s. 7 front, the recipient also seeks after-the-fact contributions by the father to a school trip taken by the daughter and certain orthodontic expenses.

[ 2 ] The recipient also seeks a ruling on the existence (or not) of a $900 child-support credit claimed by the father. And the ability to make decisions for the child without the father’s input. [ 3 ] The father resists, seeking the continuation of the existing cap and no (or no further) contributions to any of the identified expenses. He asserts he has the $900 credit.

And that he should not be shut out of decision-making. [ 4 ] The father filed a cross-application (perhaps unnecessarily) seeking the continuation of the $1,200 annual cap on his sec-7- expense exposure. (I believe he could have advanced that position without a cross-application i.e. simply in response to the mother’s bid to remove the cap.) [ 5 ] I find that the father is not responsible to contribute to the incremental tennis expenses or the school trip.

He is obliged to contribute to tennis expenses at the first-facility-expense level and to orthodontics. [ 6 ] On decision making, the mother did not obtain Family Docket Court leave to pursue that relief, which I accordingly do not explore. II.

Section 7 expenses A. Background [ 7 ] On January 5, 2018, as part of a broader child-support order, Yungwirth J. directed this on

section 7 expenses: As per [such] expenses which include child care [$565.00], tennis and piano, the father will pay his proportionate share of 43.8% and the mother will pay her proportionate share of 56.2%. [ 8 ] Those percentages reflect the father’s and mother’s then annual incomes of $74,717 and $95,726, respectively (as reflected in the order’s

preamble). [ 9 ] On March 30, 2021, Rothwell J. granted an interim variation order, sparked (in whole or in part) by changes to the parties’ incomes (father’s 2020 income -- $38,000 and mother’s --$80,819). On

section 7 expenses, his order directed: … Yungwirth J.’s order respecting

section 7 expenses is amended effective May 1, 2020 and [the payor] shall pay

Section 7 expenses for tennis only . Mr. Joe-Joe’s proportionate share shall be 31.98% and Ms. Joe-Joe’s shall be 68.02%. Mr. Joe-Joe’s

Section 7 expenses shall be capped at and not exceed $100 per month until further Order of this Court. The Director of Maintenance Enforcement shall make the relevant calculations and deduct the amounts that have been paid by [Mr. Joe-Joe] in respect of

Section 7 expenses if required. [emphasis added] [ 10 ] The father’s income in 2021 and 2022 income was $45,000 and $73,000, respectively. The mother’s income in those years was $91,827 and $95,000, respectively. [ 11 ] On the mother’s bid to lift the $1,200 annual cap on s. 7 expenses, the father argues: … At 55 years plus, I have no savings account and I have no life insurance because of the undue financial hardship the [mother] has brought to bear on me.

The [mother] earns enough money to be able to pay for the expensive programs that she wants for our daughter. … Now [as of July 10, 2023 i.e. the date of the father’s concise letter] I am paying [the mother] $636 in [section 3] child support as per the federal child support guideline. This amount plus the $100 [monthly capped]

section 7 expenses equals $736.00 each month , which she is currently receiving. Yet, she wants the cap on

section [7] expenses removed so that she can plunge me into further financial misery. I cannot afford to add on to the $736 that I am currently paying. I also have further financial constraints that make it difficult, if not impossible, for me to cope with any further add-on. This constraint is the result of a mortgage that the [mother] and I undertook in 2007 which went to foreclosure in 2013 during the divorce. It is my information that [the mortgagee] filed legal action against us in 2013, after the foreclosure, to recover financial damages it suffered as a result thereof.

The [mother] was aware of the litigation against us but failed to notify me. When [the mortgagee] got a judgment to recover the sum of $128,000 from us in 2013, the [mother] filed for bankruptcy and resolved herself from any liability unknown to me. Almost 10 years ago, [the mortgagee] … informed me that it had a judgment against the [mother] and [me] to recover the sum of $128,000 in damages for the foreclosure of the property that we had mortgaged. Because the [mother] filed for bankruptcy after the initial judgment, I was [solely] liable to pay the full amount , since I am the co- signer.

One January 13, 2023, [the mortgagee] filed an application against me for a new judgment. I had no alternative but to [file a] consumer proposal . [under the Bankruptcy and Insolvency Act ]. As per the consumer proposal agreement, I must pay $18,000 [on] which $300.00 is deducted from my bank account every month , which started on March 31, 2023. $736 child support and

section 7 expenses plus $300 consumer proposal [payment] every month adds up to $1,036.00. I also have a car payment of $735.20 every month . These payments added to my house rent, bills and personal support make it impossible for me to survive, should there be any additional payments in the name of

section 7 expenses as the [mother] is seeking. Therefore, I am asking the court to keep in place the cap placed on

section 7 expenses by [Rothwell J.] on March 30, 2021. [excerpts from father’s concise letter dated July 10, 2023] [emphasis added]

[ 12 ] On the remove-or-continue-cap point, the mother argues: I am asking the Court to remove the cap on

section 7 [expenses] and enforce that the [father] starts paying his proportional share of

section 7 expenses based on his income. … [excerpt from the mother’s concise letter filed July 17, 2023]. B.

Section 7 expense framework [ 13 ] Here is

section 7 (relevant portions) of the Federal Child Support Guidelines :

(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 : (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment …; [and] (

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 or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant.

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

(3) Subject to subsection (4 ), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. [emphasis added] [ 14 ] I turn next to the key facts on which this framework operates. C. Change in tennis-related expenses [ 15 ] At the centre of the

section 7 debate is an annual fee of approximately $10,000 for the daughter’s tennis training at a particular facility in Edmonton. Per the father, until 2018, she trained at another facility, where the annual fee was much less. (As far as I can tell, neither party put the precise fee into evidence. I infer from the tenor of the father’s submissions (effectively, “massive increase”) and the public (versus private) nature of the first facility that the first-facility fees were in the neighbourhood of $2,000 to $3,000.

I return to this point later.) [ 16 ] Per the father, the mother did not consult with him about moving the daughter to the current facility. In any case, he sees the current expense as extravagant i.e. beyond the means of this family and, in any case, beyond his means as a co-funder of

section 7 expenses. [ 17 ] Per the mother, the daughter has shown and continues to show great potential in competitive tennis, the daughter derives great satisfaction and fulfilment from her tennis training and tournaments (across western Canada), the move to the current facility greatly expanded her weekly training hours, that facility ordinarily charges further training or other fees of approximately $10,000 per year, which it is waiving for this family, and basic fairness demands that the father start paying his income-proportionate share of the current ($10,000) annual tab for tennis. [ 18 ] Per the clerk’s notes of the application before Rothwell J. in late March 2021, it is clear that the mother did not consult with the father about the switch to the current facility. (Rothwell J.: “Did you speak to [the father] about spending that money [i.e. (from the context) for the current facility’s fees]?” Mother: We have not seen him for the past 5 years.”)

D. Potentially relevant-to-section-7 factors [ 19 ] Here are the potentially relevant factors here: • under the Yungwirth J. order (January 5, 2018), the approved

section 7 expenses were “child care …, tennis , and piano.” That order was apparently not appealed, with the father apparently content to pay, or resigned to paying, his income-proportionate share of tennis (among other) expenses; • the parties’ guideline incomes were then (per that order’s

preamble) $74,717 and $95,726 for the father and mother, respectively, yielding load-sharing ratios of 43.8% and 56.2%, respectively; • per the father, the scale of those expenses, at the earlier facility were vastly less than the current approximately $10,000 (annual); • the $1,200 annual cap was imposed by Rothwell J. in March 2021 when the f ather’s income had dropped materially i.e. to $38,000 for 2020, with the mother’s also dropping but not as much (to $80,819); • by that time, the daughter had transferred to the current tennis training facility (change at some point in 2018), apparently after the Yungwirth order (January 5, 2018); • the mother arranged the facility transfer without advance notice to the father or seeking his consent in advance of the transfer .

While the mother’s evidence was that she and the daughter had not seen the father for many (“five”) years in the lead-up to the facility transfer, she did not give any evidence that the father was unreachable i.e. that she could not have contacted him to discuss a proposed facility change, including whether he would agree to contribute to the increased tennis expenses; • tennis is very important to the daughter , who has been playing since age 5 and with much of her after-school and weekend time devoted to training at the current facility and competing in tournaments (including out-of-town, across western Canada); • the mother did not introduce evidence from coaches, trainers or others with (potentially helpful) views of the daughter’s tennis aptitude and skills and overall tennis potential , or any evidence of her performance in tournaments; • neither did she produce any evidence (if any available) of potential university or college tennis scholarships or bursaries which are or might be available to the daughter; • the father and mother do not have other children together i.e. we are not concerned here about rationing section-7-expense contributions among any other children; • the parties were in a very short-term relationship (approximately two years – 2005-2007), meaning we do not have any, or any material, pre-separation track record of extracurricular activities pursued by the child (born in 2008) and the associated expenses incurred for those activities i.e. as a (potentially useful) benchmark for gauging the reasonableness of the current expenses; • the father did not provide a detailed, or any, budget showing his overall income and expenses (instead noting the identified- above species of expenses); • on the other hand, the mother did not cross-examine the father on his affidavit or statutory declaration (supporting his concise letter) e.g. as to his evidence of not being able to afford any more than $100 monthly in s. 7 expenses; and • the mother has apparently been able to manage the current s. 7 expenses on her own, out of her own income and

section 3 child support, and without having to borrow or depend on third parties (e.g. other family members) to cover any shortfall. [ 20 ] Are any of these factors decisive or particularly compelling here? E. Alberta case law on consultation failures [ 21 ] Failing to consult is generally treated as a relevant – sometimes decisive -- factor in gauging a parent’s exposure to

section 7 expenses. See, for example, DJE v PAE , 2014 ABQB 25 (Erb J.): L was enrolled in private school on the mother’s unilateral decision. The father was not consulted. He found out about it after the fact and through a third party . He disagreed because of the financial costs with little additional advantage to his son not already available to him. I find that the mother having unilaterally placed L in private school should pay the fees and all related costs associated with L’s attendance at private schools in both Alberta and British Columbia. Accordingly, private school fees at Strathcona-Tweedsmuir and St. George’s School, are not a

Section 7 expense in the all the circumstances of this case. [paras 38 and 39] [emphasis added] [ 22 ] Erb J.’s decision was affirmed by the Alberta Court of Appeal ( 2014 ABCA 403 ): Regarding the law on s 7 expenses, the father submits the chambers judge appropriately considered necessity and reasonableness in relation to the parents’ incomes and spending patterns prior to separation. He argues that the mother’s failure to consult him about private school is an appropriate consideration , and notes that the need to maintain two households after separation is also a relevant factor.

Further, the father submits that even where there are means to pay for extraordinary expenses, courts must still consider whether the expense is reasonably necessary in the child’s best interests.

In our view, the chambers judge properly concluded that the private school expense was neither necessary nor reasonable. She based her careful analysis on the history of the parents, the report of the parenting coordinator, the financial means of the parents, the needs of the child, and the unilateral decision of the mother to place the child in private school. We find no error in her exercise of judgment.

The chambers judge did not misdirect herself on the applicable law, nor did she significantly misapprehend any of the evidence. [paras 27 and 31] [emphasis added] [ 23 ] I see the failure to consult as a stand-alone or at least potentially stand-alone reason for not tagging the father there with the proposed sec 7 expense.

If the expense was not reasonable or necessary, or was beyond the means of the family, those would have been sufficient reasons for not tagging the father with (partial) responsibility for the proposed expenses. [ 24 ] See also Sherbo v Sherbo , 2021 ABQB 76 (Gates J.): With respect to the cost of counselling, I would direct that Mr. Sherbo pay Ms. Sherbo his proportionate share, specifically $828.00. Given that Ms. Sherbo incurred the cost of tutoring for both children without Mr. Sherbo’s prior consent, I decline to make an order requiring him to assume his otherwise proportionate share of this expense .

On a go-forward basis, I would direct that the parties must agree in advance to any expense to be incurred by either parent will be subject to parental sharing.

Any s. 7 expense that has not been agreed to in advance by both parents may still be pursued by the requesting parent, but no claim may be made for the sharing of that expense. [para 53] [emphasis added] [ 25 ] And Nyereyogona v Schofield , 2021 ABQB 662 (Manderscheid J.): As an alternative argument, the Applicant is requesting that the Respondent be required to pay 33% of the children’s s 7 expenses – minus LH’s s 7 contribution – from September 1, 2011 to present.

In Bland v Blan d , 1999 ABQB 236 , one of the factors set out in para 24 to be considered in assessing the reasonableness of a s 7 expense claim is whether the parent from whom the contribution is sought was consulted about the expense before it was incurred . See also: NJP v DWH , 2006 ABQB 352 at para 9 . There is no evidence that the Applicant consulted with, sought prior approval for or notified the Respondent with respect to any s 7 expenses being incurred, whether before or after each of DNH and TNH turned 18 years of age.

Nor did she provide any evidence that she demanded or requested that the Respondent contribute to these expenses prior to this Application. See: MLR v SLR , 2020 ABQB 444 at paras 43 and 46 [ MLR ] . [no sec 7 co-responsibility imposed – para 183] [emphasis added] [paras 177-179] [ 26 ] And AJU v GSU , 2015 ABQB 6 (Pentelechuk J. as she then was): The net, after tax cost of medical, dental and child care expenses will be apportioned between the parties in accordance with the parties’ respective incomes for the relevant years. School fees, supplies and bussing will be split equally.

The other claimed Guidelines , s 7 expenses will be not be split between the parents because each party failed to consult with the other regarding these expenditures . [para 207] [emphasis added] F. Application of those principles here (tennis expenses) [ 27 ] The critical factors on the sec 7 front are the scale of increase in tennis expenses and the mother’s failure to consult the father before committing to the more expensive training. [ 28 ] We are not dealing with a modest increase in the expense of an already-approved sec 7 activity.

Again, while the evidence is imprecise here, it appears that the tennis expenses increased four- or five-fold. [ 29 ] As far as I can tell, none of the referenced orders or any of the earlier orders on this file gave the mother the right to make sec 7 decisions on her own e.g. to increase the expense of approved sec 7 activities. [ 30 ] No evidence showed that, in any case, the father authorized the mother to proceed unilaterally on sec 7 expenses. [ 31 ] The mother did not give historical evidence of being unable to contact the father e.g. to reach him in person, by phone, by email or otherwise e.g. to advise of and discuss a proposed sec 7 expense change. [ 32 ] What is the consequence of the mother’s failure to consult with the father before shifting the daughter’s tennis training to the current facility? [ 33 ] Applying the guidance of the above cases, I find that, in the circumstances here, the mother was obliged to consult with the father before shifting the daughter’s tennis training to the massively more expensive facility. [ 34 ] It may be that, if she had consulted with the father in advance, and he had declined to approve the proposed expense increase, and the mother had then applied for an order compelling the father to contribute to the new expense income-proportionately, a father- obliged-to-contribute order would have resulted. [ 35 ] But the point here is that we have a process for resolving such disputes.

And the starting point is consulting in advance. [ 36 ] It may be that the father might have signed on to assisting with some or all of the proposed expense increase. [ 37 ] In any case, parents should be discouraged from making unilateral

section 7 expense decisions. [ 38 ] Hence this decision: the father is not obliged to contribute to the incremental tennis expenses, having not been consulted about them in advance.

[ 39 ] On the other hand, per the Yungwirth order, the father had been tagged with co-responsibility for the first-facility tennis fees, on an income-proportionate level. [ 40 ] As far as I can tell, Rothwell J. imposed the noted cap because the father’s income had plummeted (mid $70K to $38K). [ 41 ] That plummet has now reversed itself, with the father’s current income effectively the same as when Yungwirth J. imposed co-responsibility for the first-facility fees. [ 42 ] As noted, the precise amount of those fees is uncertain.

I proceed on the basis those fees are known by both parties and that MEP also knows the level of those fees, from receipts submitted by the mother while the daughter was training at the first facility. [ 43 ] If the parties are not able to agree on those fees, I will resolve the dispute after hearing from each party, as discussed further below. [ 44 ] All to say: I re-impose income-proportional responsibility (based on 2022 tax-reported incomes) for the tennis expense, albeit to a maximum of the first-facility fees. [ 45 ] The ruling operates going forward only, as the mother did not seek to impose retroactive responsibility for any tennis fees.

G.

School trip and orthodontic expenses [ 46 ] The mother did consult with the father for a school trip to Europe for the daughter, as required by the Rothwell order. [ 47 ] He did not agree to contribute, and the mother ended up paying the full cost of the trip ($3,914). [ 48 ] The problem (for the mother) here is the Rothwell order expressly limiting the father’s sec 7 exposure to $100 per month “until further Order of this Court.” [ 49 ] On that (“until further Order …”) aspect, the mother’s recourse, faced with the father’s no-contribution stance, was to apply for an order obliging the father to contribute before incurring the expense . [ 50 ] It may be that the mother can seek contribution after the fact and that she has moved in a timely way to do so. [ 51 ] In that case, I find that this trip expense cannot fairly be regarded as necessary or reasonable for this family, in light of their respective incomes and the absence of any track record of family funding of such extras. [ 52 ] On orthodontics ($5,500 paid entirely by the mother to date), I find for the mother, on the bases that she sought advance approval by the father (he balked at contributing) and that, even though his sec 7 exposure was capped as noted, these expenses are different from truly optional expenses such as the enhanced tennis training and the school trip.

The evidence shows that the daughter required orthodontic treatments, and the father gave no material evidence otherwise or that the $5,500 expense was excessive. (Here I disregard the father’s lay opinion that (effectively) it did not look like the daughter needed orthodontics.) [ 53 ] I direct that the father shoulder 45 per cent of the $5,500 expense (using a rough average of his income-proportion ratio over the past three years) i.e. $2,475, to be paid in equal monthly installments, starting November 1, 2024, of $103.13 monthly i.e. over the next 24 months. III.

Credits [ 54 ] The parties dispute the existence and, if any, the amount of any credits available to the father, arising from his sec 7 expense payments to date. [ 55 ] They also dispute whether the father paid all required sec 7 support per the Rothwell order. [ 56 ] I leave these to the parties to resolve with MEP, which tracks and characterizes payments. [ 57 ] The father is required to clear up any shortfall in his Rothwell-order sec 7 contributions, less any available credit. [ 58 ] If MEP requires a ruling on any aspect of the credits dispute, I will provide it on request. IV.

Unilateral decision making [ 59 ] The mother also asked for unilateral decision making. [ 60 ] The father did not address that aspect. [ 61 ] Which is not surprising: the mother did not obtain Family Docket Court clearance to address decision making at the recent application. [ 62 ] Accordingly, I decline to explore that aspect.

V. Conclusion [ 63 ] The Rothwell order cap no longer applies. [ 64 ] The approved sec 7 expenses are limited to tennis and at the first-facility level, on a going forward basis, with the contribution ratio set at 43 per cent for the father and 57 per cent for the mother, based on their 2022 incomes. [ 65 ] The father shall also make the orthodontic-related payment directed above. [ 66 ] If the mother proposes further

section 7 expenses for the daughter, she must consult with the father in advance. If he agrees to the proposed expense, the

section 7 expenses shall be adjusted accordingly. If he declines to share in the proposed expense and the mother continues to seek contribution from him, she must seek a court order, starting in Family Docket Court. Heard on the 16 th day of August, 2023. Dated at the City of Edmonton, Alberta this 29 th day of September, 2023. M. J. Lema J.C.K.B.A. Appearances: Grace Kpadeh Joe-Joe Self-represented applicant Joseph Forkpayea Joe-Joe Self-represented respondent