D.B.S. v. S.R.G.,

• Judge: Fraser, C.J.A., Côté and Paperny, JJ.A.
• Neutral Citation: 2005 ABCA 2
• Citation: (2005), 361 A.R. 60 (CA),2005 ABCA 2,249 DLR (4th) 72,[2005] 5 WWR 229,361 AR 60,38 Alta LR (4th) 199,7 RFL (6th) 373,[2005] CarswellAlta 18,[2005] AJ No 2 (QL),136 ACWS (3d) 514,339 WAC 60,249 D.L.R. (4th) 72,339 W.A.C. 60,[2005] A.J. No 2 (QL),(2005), 361 AR 60 (CA),361 A.R. 60
• Date: 10 May 2004
• Court: Court of Appeal (Alberta)

D.B.S. v. S.R.G. (2005), 361 A.R. 60 (CA);

    339 W.A.C. 60

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. JA.074

D.B.S. (respondent/plaintiff) v. S.R.G. (appellant/defendant)

(0303-0334-AC; 2005 ABCA 2)

Indexed As: D.B.S. v. S.R.G.

Alberta Court of Appeal

Fraser, C.J.A., Côté and Paperny, JJ.A.

January 7, 2005.

Summary:

A couple separated in 1998. They executed an agreement which, inter alia, provided that they would have shared custody of their three children. The father paid no child support during the period of shared custody. The mother applied for, inter alia, child support and retroactive child support for the 36 months that the couple had shared custody. A chambers judge, inter alia, determined the father's ongoing child support obligations, but refused to award retroactive child support. The mother appealed.

The Alberta Court of Appeal allowed the appeal. The court discussed the considerations that should guide the awarding of retroactive child support in the post-Guideline era. The court remitted the matter to the chambers judge to determine the extent of and manner of payment of any retroactive support owed.

Editor's note: certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Equity - Topic 2070

Equitable defences - Laches - Child support - The Alberta Court of Appeal discussed the considerations that should guide the awarding of retroactive child support in the post-Guideline era - The court stated that "the issue of laches is not a consideration against the awarding of retroactive support or alternatively, reducing the amount of retroactive support ... Laches is an equitable concept not applicable where a claim is based on statute" - See paragraph 114.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - The Alberta Court of Appeal set out the following factors to be considered in determining whether to award retroactive child support in the post-Guideline era: "1. A child is entitled to child support. Need is presumed; 2. The Guidelines presume an ability to pay on the part of the payor in accordance with his or her income as established in accordance with s. 16 of the Guidelines; 3. Blameworthy conduct on the part of the payor is not required; 4. The payee does not need to demonstrate an encroachment on his or her capital; 5. Notice of an intention to pursue child support is not a prerequisite to a retroactive award; 6. Whether there is an unreasonable burden placed on the payor should not be assumed, but must be established; it must be incapable of alleviation by creative payment options. Further, the reason for or the cause of the inability to pay must be considered and any burden must be balanced against the corresponding deprivation to the payee and the child; 7. A lump sum payment is not precluded merely because it involves a transfer of capital; 8. The date of the increased income as defined by the Guidelines is the presumptive date for the commencement of a retroactive award unless the payor has satisfied the additional financial obligation in some other manner, has taken all reasonable steps to fulfill the obligation, has a previous arrangement for child support that contemplates the provisions of the Guidelines, or the payee fails to act diligently without reasonable excuse." - See paragraphs 66 to 153.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - The Alberta Court of Appeal stated that denial of retroactive child support solely because a child was no longer a "child of the marriage" at the time of the application or hearing was without merit - "Proper compensation to the payee remains a significant consideration which should not be overlooked simply because the child may no longer be considered a 'child of the marriage' for purposes of the Divorce Act. If, during the period when the child was a child of the marriage, the payor was not paying a fair share, then the payee was required to carry a heavier burden ... The payee is still entitled to reimbursement even though the child no longer fits the definition." - See paragraphs 115 and 116.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - The Alberta Court of Appeal stated that once information about a change that would warrant a different child support order was disclosed, the payee should act upon that information - This did not require bringing a court application or filing a notice to disclose - Requesting a variation, regardless of what words were used, would do - However, where there has been full and fair disclosure and no reasonable excuse for a significant delay in requesting an increase in support, then an argument that some part of that time frame had created a hardship on the payor may have some merit - The delay had to be for a very long time before it becomes significant since the passage of time alone does not diminish the obligation for support - The court discussed reasonable explanations which would excuse a payee's delaying a request or action for increased support - See paragraphs 117 to 122.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - The Alberta Court of Appeal discussed the considerations that should guide the awarding of retroactive child support in the post-Guideline era - The court stated that the considerations applied whether the proceeding was for an interim, trial or variation order - See paragraph 123.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - [See Equity - Topic 2070 ].

Family Law - Topic 2341

Maintenance of wives and children - Maintenance of children - General - The Alberta Court of Appeal referred to and discussed the following "four cardinal principles that historically founded the law of child support": (1) the legal basis of child support is the parents' mutual obligation to support their children; (2) child support is the right of the child and as a result, a parent cannot barter away the child's right to support in a settlement agreement; (3) the court is always free to intervene and determine the appropriate level of support; and (4) because support is the child's right, the fact that the custodial parent may benefit incidentally cannot decrease the quantum awarded - See paragraphs 13 to 20.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - [See Equity - Topic 2070 and first, second, third and fourth Family Law - Topic 2211 ].

Family Law - Topic 2360.1

Maintenance of wives and children - Maintenance of children - Variation of award or agreement - The Alberta Court of Appeal stated that "The architecture of the Guidelines ... contemplates the exchange of information on an annual basis to ascertain the [child support] obligation, the clear intention being that child support amounts are linked to income, including by necessity, variations in income. Thus, it is incorrect to assume that an award granted on valid numbers in year one will remain valid in years two, three and four, if there has been an increase in income, that is, a change of circumstance, warranting a higher award during those years. In other words, child support awards are not immutable and variation on a regular basis constitutes the intended norm, not the exception. In order to avoid the necessity of future applications to vary child support orders, the parties may enter into agreements which contemplate recalculation or courts may order a procedure enabling parents to recalculate child support without returning to court ... this is a prudent approach which should be encouraged by bar and bench." - See paragraph 94.

Family Law - Topic 2360.1

Maintenance of wives and children - Maintenance of children - Variation of award or agreement - The Alberta Court of Appeal stated that it was "incumbent on courts to ensure that child support orders provide for recalculations of child support on a regular basis. At a minimum, orders for payment of periodic child support should routinely include the following provisions, unless the court is otherwise satisfied that it is not appropriate to include these provisions. First, the payor-parent should be required to provide, on an annual basis, income tax and other information as contemplated under s. 25 of the Guidelines to the recipient-parent and vice versa if the recipient parent's income is used to determine the amount of the child support order. This avoids all the practical problems associated with the issuance, and delivery, of repeated written requests for this information. Second, the court order should reflect that the amount of child support awarded under the order is subject to adjustment and that such amount shall be recalculated annually based on then current income or as agreed upon between the parties. Third, the court order should provide that if the parents are unable, within a specified period of time following the exchange of the relevant information or the date by which the information was to exchanged, to agree on the amount of the child support payable or the date on which the adjusted amounts will commence, then either parent may apply to the court to settle these issues." - See paragraphs 149 and 150.

Family Law - Topic 2367

Maintenance of wives and children - Defences or bars - Delay or estoppel - [See third Family Law - Topic 2211 ].

Family Law - Topic 2445

Maintenance of wives and children - Evidence - Financial disclosure - [See second Family Law - Topic 2360.1 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Equity - Topic 2070 and first, second, third and fourth Family Law - Topic 2211 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - [See Family Law - Topic 2341 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - [See both Family Law - Topic 2360.1 ].

Family Law - Topic 4023

Divorce - Corollary relief - Maintenance awards - Effect of delay or laches - [See Equity - Topic 2070 and third Family Law - Topic 2211 ].

Family Law - Topic 4045.1

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - General - The Alberta Court of Appeal discussed the rationale for and the purpose of the Child Support Guidelines - The court stated, inter alia, that the Guidelines' emphasis was on children, creating a child-centered, not a payor-centered approach - They shifted the focus from the payee's needs and the payor's ability to pay to the payor's income - See paragraphs 35 to 42.

Family Law - Topic 4045.2

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Financial disclosure - The Alberta Court of Appeal stated that although disclosure was an obligation on both parties, it was not the central issue when seeking increased support - The court stated that "Support obligations do not depend upon disclosure, i.e., failure to disclose, or for that matter, failure to insist on disclosure does not eliminate or deny the existence of the obligation to support. ... the obligation to provide the proper amount of financial support for a child does not depend on the existence of a duty to disclose. It works the other way around. The duty to disclose is part of the obligation to pay support where the regime requires information about the payor's income to determine the appropriate level of support." - The court agreed that the Guidelines contained a continuing obligation to provide financial information - See paragraphs 130 to 134.

Family Law - Topic 4045.2

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Financial disclosure - [See second Family Law - Topic 2360.1 ].

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody - The Alberta Court of Appeal discussed the considerations that should guide the awarding of retroactive child support in the post-Guideline era - The court set out valid considerations for determining the amount and extent of retroactive child support - The court stated that "Section 9 [shared custody] expands the scope for the exercise of judicial discretion by requiring considerations beyond those in the table amounts. Recognition of these additional considerations does not necessarily lead to a reduction in the amount of support owing according to the table. The overriding concern is to serve the best interests of the child and provide the child with as similar a standard of living in both households as possible. To that end, the factors to be considered when determining if retroactive support should be awarded remain the same." - See paragraph 155.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Changed circumstances - The Alberta Court of Appeal stated that "The principles and objectives of the Guidelines make it clear that a change in circumstances occurs when there has been an increase in the payor's income in an amount that would warrant a different order." - See paragraph 127.

Family Law - Topic 4045.21

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Mechanism for regular recalculation - [See both Family Law - Topic 2360.1 ].

Cases Noticed:

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81, refd to. [para. 8].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 8].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 8].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 8].

Levesque v. Levesque (1994), 155 A.R. 26; 73 W.A.C. 26; 4 R.F.L.(4th) 375 (C.A.), refd to. [para. 13, footnote 5].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1, refd to. [para. 14].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261; 17 R.F.L.(4th) 88 (C.A.), refd to. [para. 15].

Horner v. Horner (2004), 191 O.A.C. 28 (C.A.), refd to. [para. 15].

Paras v. Paras, [1971] 1 O.R. 130 (C.A.), refd to. [para. 17].

Hansford v. Hansford, [1973] 1 O.R. 116 (H.C.), refd to. [para. 18].

Cartlidge v. Cartlidge, [1973] 3 O.R. 801 (Fam. Ct.), refd to. [para. 18].

Goldstein v. Goldstein (1976), 67 D.L.R.(3d) 624 (Alta. C.A.), refd to. [para. 19].

Kravetsky v. Kravetsky (1975), 63 D.L.R.(3d) 733 (Man. C.A.), refd to. [para. 19].

Malcovitch v. Malcovitch (1978), 21 O.R.(2d) 449 (H.C.), refd to. [para. 19].

Fiedler v. Fiedler (1975), 55 D.L.R.(3d) 397 (Alta. C.A.), refd to. [para. 19].

Syvitski v. Syvitski (1988), 86 N.S.R.(2d) 248; 218 A.P.R. 248 (Fam. Ct.), refd to. [para. 23, footnote 8].

Kerr v. Kerr, [1897] 2 Q.B. 439, refd to. [para. 25, footnote 10].

Wilson v. Wilson (1830), 3 Hag. Ecc. 329; 162 E.R. 1175, refd to. [para. 26].

Haisman v. Haisman (1994), 157 A.R. 47; 77 W.A.C. 47; 116 D.L.R.(4th) 671 (C.A.), leave to appeal dismissed (1995), 195 N.R. 159; 181 A.R. 79; 116 W.A.C. 79 (S.C.C.), refd to. [para. 27].

Cherry v. Cherry (1996), 76 B.C.A.C. 202; 125 W.A.C. 202; 24 B.C.L.R.(3d) 158 (C.A.), refd to. [para. 30].

Andries v. Andries (1998), 126 Man.R.(2d) 189; 167 W.A.C. 189; 159 D.L.R.(4th) 665 (C.A.), refd to. [para. 34, footnote 15].

Elliot v. Elliot (1993), 65 O.A.C. 241; 15 O.R.(3d) 265 (C.A.), refd to. [para. 34, footnote 15].

Brett v. Brett (1999), 119 O.A.C. 94; 46 R.F.L.(4th) 433; 173 D.L.R.(4th) 684 (C.A.), refd to. [para. 34, footnote 15].

Allen (Guardian ad litem of) v. Allen (1994), 9 R.F.L.(4th) 48 (B.C.S.C.), refd to. [para. 34, footnote 15].

Fibke v. Fibke (1999), 240 A.R. 17 (Q.B.), refd to. [para. 40, footnote 24].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 42, footnote 26].

M.C. v. V.Z. (1998), 228 A.R. 283; 188 W.A.C. 283 (C.A.), refd to. [para. 43].

P.T. v. R.B. et al. (2004), 361 A.R. 163; 339 W.A.C. 163; 2004 ABCA 244, refd to. [para. 43].

C.H.R. v. E.B.C., [1997] A.J. No. 561 (Q.B.), refd to. [para. 43].

I.L. v. L.P.H. (1998), 233 A.R. 368 (Q.B.), refd to. [para. 43, footnote 28].

Hodgins v. Bell, [1997] A.J. No. 1162 (Q.B.), refd to. [para. 43, footnote 28].

Melton v. Uniat (1998), 234 A.R. 398 (Q.B.), refd to. [para. 43, footnote 28].

Goerlitz v. Paquette (1998), 221 A.R. 182 (Q.B.), refd to. [para. 43, footnote 28].

H.R.R. v. J.W.G., [1996] A.J. No. 1079 (Q.B.), refd to. [para. 43, footnote 28].

Alberta (Parentage and Maintenance Act, Director) v. M.Z., [1996] A.J. No. 673 (Q.B.), refd to. [para. 43, footnote 28].

Miller v. Sharp, [1998] A.J. No. 358 (Q.B.), refd to. [para. 43, footnote 28].

Channer v. Hoffman-Turner (1997), 214 A.R. 354 (Q.B.), refd to. [para. 43, footnote 28].

M.P.L. v. V.E.C. (1998), 231 A.R. 1 (Q.B.), refd to. [para. 43, footnote 28].

Hunt v. Smolis-Hunt (2001), 286 A.R. 248; 253 W.A.C. 248; 205 D.L.R.(4th) 712 (C.A.), consd. [para. 47].

Crick v. Crick, [1997] B.C.T.C. Uned. A42 (S.C.), refd to. [para. 50, footnote 29].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 175 D.L.R.(4th) 423 (C.A.), leave to appeal refused (1999), 252 N.R. 194; 135 B.C.A.C. 160; 221 W.A.C. 160 (S.C.C.), refd to. [para. 50, footnote 30].

Wesolowski v. Wesolowski, [1999] A.R. Uned. 43; 1999 ABCA 66, refd to. [paras. 50, 54, footnote 31].

Ennis v. Ennis (2000), 281 A.R. 161; 248 W.A.C. 161; 2000 ABCA 33, refd to. [paras. 50, 55, footnote 31].

Hanmore v. Hanmore (2000), 255 A.R. 163; 220 W.A.C. 163, 2000 ABCA 57, refd to. [para. 50, footnote 31].

Wishlow v. Bingham (2000), 261 A.R. 299; 225 W.A.C. 299; 2000 ABCA 198, refd to. [paras. 50, 56, footnote 31].

Whitton v. Shippelt (2001), 293 A.R. 317; 257 W.A.C. 317; 2001 ABCA 307, refd to. [paras. 50, 59, footnote 31].

Dahl v. Dahl (1995), 178 A.R. 119; 110 W.A.C. 119 (C.A.), refd to. [para. 54].

Degagne v. Sargeant (1999), 232 A.R. 355; 195 W.A.C. 355 (C.A.), refd to. [para. 54].

Koenen v. Koenen (2001), 277 A.R. 265; 242 W.A.C. 265 (C.A.), refd to. [para. 56].

Tedham v. Tedham (2003), 188 B.C.A.C. 297; 308 W.A.C. 297; 44 R.F.L.(5th) 204 (C.A.), leave to appeal dismissed [2004] S.C.C.A. No. 4, refd to. [para. 70].

Conrad v. Rafuse (2002), 205 N.S.R.(2d) 46; 643 A.P.R. 46; 212 D.L.R.(4th) 236 (C.A.), refd to. [para. 70].

Cornelissen v. Cornelissen (2003), 190 B.C.A.C. 97; 311 W.A.C. 97; 2003 BCCA 666, refd to. [para. 74].

Marinangeli v. Marinangeli (2003), 174 O.A.C. 76 (C.A.), refd to. [para. 74].

Steinhuebl v. Steinhuebl, [1970] 2 O.R. 683 (C.A.), refd to. [para. 76, footnote 37].

MacNeal v. MacNeal (1993), 50 R.F.L.(3d) 235 (Ont. Gen. Div.), refd to. [para. 76, footnote 37].

Dickie v. Dickie, [2001] O.T.C. Uned. 749; 17 R.F.L.(5th) 304 (Sup. Ct.), refd to. [para. 76, footnote 38].

Walsh v. Walsh (2004), 183 O.A.C. 179; 46 R.F.L.(5th) 455 (C.A.), consd. [paras. 76, 97 footnote 38].

Andrew-Reed v. Reed, [2002] B.C.T.C. Uned. 148 (S.C.), refd to. [para. 94].

Tran v. Tang (1996), 83 B.C.A.C. 267; 136 W.A.C. 267; 25 R.F.L.(4th) 98 (C.A.), refd to. [para. 106].

Pearce v. Murphy, [2004] O.T.C. 95; 47 R.F.L.(5th) 192 (Sup. Ct.), refd to. [para. 108].

Patton v. Reed, [1972] 6 W.W.R. 208 (B.C.S.C.), refd to. [para. 113].

Ramsay v. Ramsay (1976), 23 R.F.L. 147 (Ont. C.A.), refd to. [para. 114].

Rodness v. Rodness (1976), 23 R.F.L. 266 (B.C.C.A.), refd to. [para. 114].

S.E.C. v. D.C.G., [2003] B.C.T.C. 896 (S.C.), refd to. [para. 122].

Lewis v. Lewis (1999), 25 B.C.T.C. 222; 1999 CarswellBC 2468 (S.C.), refd to. [para. 122].

Larrier v. Luczkiw, [2001] O.T.C. 529; 2001 CarswellOnt 2449 (Sup. Ct.), refd to. [para. 126, footnote 49].

Contino v. Leonelli-Contino (2003), 178 O.A.C. 281; 42 R.F.L.(5th) 295 (C.A.), refd to. [para. 155, footnote 55].

Gieni v. Gieni, [2002] Sask.R. Uned. 115; 29 R.F.L.(5th) 60 (C.A.), refd to. [para. 155, footnote 55].

Green v. Green (2000), 138 B.C.A.C. 121; 226 W.A.C. 121; 6 R.F.L.(5th) 197 (C.A.), refd to. [para. 155, footnote 55].

Authors and Works Noticed:

Canada, Department of Finance, Budget 1996: The New Child Support Package (1996), p. 13 [para. 40, footnote 24].

Canada, Department of Justice, Child Support Team, Child Support Initiative: Research Framework (CSR-1999) (1999), generally [para. 35, footnote 16].

Canada, Department of Justice, Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines (2002), p. 11 [para. 134, footnote 51].

Gordon, Marie, Retroactive Child and Spousal Support, Paper presented to the National Family Law Program (July 2004), generally [para. 25, footnote 9].

Komar, Roman N., The Enforcement of Support Arrears - Myth of the One Year Rule (1975), 19 R.F.L. 129, generally [para. 26, footnote 11].

Payne, Julien D., and Payne, Marilyn A., Child Support in Canada (4th Ed. 2003), Parts 1-6 [para. 39, footnote 18]; 4-12 [para. 134]; 11-11 [para. 63, footnote 32].

Counsel:

G.H. Andreiuk, for the appellant;

O.A. Lewis, for the respondent.

This appeal was heard on May 10, 2004, by Fraser, C.J.A., Côté and Paperny, JJ.A., of the Alberta Court of Appeal. Paperny, J.A., delivered the following judgment for the court on January 7, 2005.