G.G. v. J.T.G., [2014] A.R. TBEd. JA.046

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 20, 2013
• Citations: [2014] A.R. TBEd. JA.046;2013 ABQB 726

G.G. v. J.T.G., [2014] A.R. TBEd. JA.046

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2014] A.R. TBEd. JA.046

G.G. (plaintiff) v. J.T.G. (defendant)

(4801 101591; 2013 ABQB 726)

Indexed As: G.G. v. J.T.G.

Alberta Court of Queen's Bench

Judicial District of Calgary

Yamauchi, J.

December 6, 2013.

Summary:

In 2001, the parties entered into a child support agreement (CSA) which required the father to pay the mother child support for their two children. In 2011 and again in 2012, the father reduced the amount of support that he was required to pay under the CSA. The mother applied to enforce the terms of the CSA. An arbitrator issued one interim award reinstating the amount of support payable pursuant to the CSA, and a second interim award for lump sum support. The father appealed the second interim award. The children's litigation representative applied to have the children granted intervenor status in their parents' litigation. Alternatively, he applied to be appointed as amicus curiae.

The Alberta Court of Queen's Bench dismissed the applications.

Editor's Note: For an earlier decision involving these parties, see (2000), 264 A.R. 22.

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.

Courts - Topic 1763

Powers - Appointment of counsel - Amicus curiae - [See Practice - Topic 687 ].

Family Law - Topic 2201

Maintenance of spouses and children - General principles - Rights of children - The litigation representative of two children of a marriage applied to have the children granted intervener status in their parents' litigation respecting a child support agreement (CSA) - The children, now aged 16 and 18, felt that the amount of support received by the mother exceeded the actual costs that she incurred on their behalf - They were concerned about how the surplus funds were being managed, and claimed that they had a proprietary right in the child support that the father paid - The Alberta Court of Queen's Bench rejected this argument - A child's "right" was the incorporeal right to have their parents contribute to their financial welfare - A child did not have a proprietary right in corporeal property such as the money that made up the child support - This was reinforced by the fact that the Divorce Act did not give a child standing to apply for child support - Only a parent could make the application - Subject to the proviso that the custodial parent had to meet the children's needs, children did not have the right to specify how or where child support would go, even if that support indirectly benefited the parent - The fact that child support payments were large was not a sufficient reason for the court to intervene in what the parties had previously agreed to through the CSA - Only the father had standing to allege that there was a wealth transfer - See paragraphs 9 to 23.

Family Law - Topic 2342

Maintenance of spouses and children - Maintenance of children - Status to apply - [See Family Law - Topic 2201 ].

Family Law - Topic 4006.2

Divorce - Corollary relief - Maintenance and awards - Awards to children - Parent's obligation - [See Family Law - Topic 2201 ].

Family Law - Topic 4006.3

Divorce - Corollary relief - Maintenance awards - Awards to children - Child's status to bring application - [See Family Law - Topic 2201 ].

Infants - Topic 401

Rights of children - General - [See Family Law - Topic 2201 ].

Infants - Topic 6085

Legal proceedings - Representation of infants - As amicus curiae - [See Practice - Topic 687 ].

Practice - Topic 680

Parties - Adding or substituting parties - Intervenors - General - The parties entered into a child support agreement (CSA) in 2001 which required the father to pay the mother child support for their two children - Ten years later, the father reduced the amount of support he was required to pay - The mother applied to enforce the terms of the CSA - An arbitrator found in favour of the mother - The father appealed - The children's litigation representative applied to have the children granted intervenor status in their parents' litigation - The children, now aged 16 and 18, felt that the amount of support received by the mother exceeded the actual costs that she incurred on their behalf - They wanted a say in how the surplus funds were managed - The Alberta Court of Queen's Bench dismissed the application - The parents' litigation did not have a constitutional dimension - The parents were honouring the children's rights by the mother receiving child support - The children would not bring any special expertise or insight into the litigation - Most importantly, their arguments extended well beyond the issues advanced by the parents and the arbitrator - The CSA did not require any of the remedies the children sought, and neither of the parents had raised them - See paragraphs 24 to 32.

Practice - Topic 687

Parties - Adding or substituting parties - Intervenors - Amicus curiae - The parties entered into a child support agreement (CSA) in 2001 which required the father to pay the mother child support for their two children - Ten years later, the father reduced the amount of support he was required to pay - The mother applied to enforce the terms of the CSA - An arbitrator found in favour of the mother - The father appealed - The children's litigation representative applied to be appointed as amicus curiae - The children, now aged 16 and 18, felt that the amount of support received by the mother exceeded the actual costs that she incurred on their behalf - They wanted a say in how the surplus funds were managed - The Alberta Court of Queen's Bench dismissed the application - There was no provision in the Alberta Rules of Court that permitted a person to intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument - Such a provision would fly in the face of the traditional approach, where the amicus curiae was seen as a disinterested person who rendered assistance to the court - Unlike in custody disputes, an amicus curiae in child support litigation could provide nothing that was not already before the court through the parents - The children might be allowed to intervene where a parent was using child support for purposes other than for the child's benefit, but that was not the case here - See paragraphs 33 to 41.

Cases Noticed:

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1, refd to. [para. 9].

Hunt v. Smolis-Hunt, [2001] 11 W.W.R. 233; 286 A.R. 248; 253 W.A.C. 248; 2001 ABCA 229, refd to. [para. 9].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 61 Alta. L.R.(4th) 1; 2006 SCC 37, refd to. [para. 12].

Wahl v. Wahl (2000), 257 A.R. 212; 2 R.F.L.(5th) 307; 2000 ABQB 10, refd to. [para. 16].

Tapson v. Tapson (1970), 1 O.R. 521; 2 R.F.L. 305 (C.A.), refd to. [para. 16].

Brett v. Brett (1999), 119 O.A.C. 94; 46 R.F.L.(4th) 433; 44 O.R.(3d) 61 (C.A.), refd to. [para. 17].

Simon v. Simon (1999), 127 O.A.C. 17; 1 R.F.L.(5th) 119; 46 O.R.(3d) 349 (C.A.), refd to. [para. 17].

Lobbes v. Lobbes (1992), 103 Sask.R. 248 (Q.B.), refd to. [para. 17].

Mylrea v. Benoit, [2003] O.T.C. Uned. 586; 42 R.F.L.(5th) 82 (Sup. Ct.), refd to. [para. 18].

Haisman v. Haisman (1994), 157 A.R. 47; 77 W.A.C. 47; 22 Alta. L.R.(3d) 56 (C.A.), refd to. [para. 21].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201; 50 R.F.L.(4th) 228, refd to. [para. 22].

R. v. Hirsekorn (G.), [2011] A.R. Uned. 70; 2011 ABQB 156, refd to. [para. 27].

Alberta (Minister of Justice) et al. v. Métis Settlements Appeal Tribunal et al. (2005), 367 A.R. 34; 346 W.A.C. 34; 2005 ABCA 143, refd to. [para. 28].

Canada (Attorney General) v. Aluminum Co. of Canada Ltd. (1987), 10 B.C.L.R.(2d) 371; 35 D.L.R.(4th) 495 (C.A.), refd to. [para. 34].

R. v. Lee (1998), 125 C.C.C.(3d) 363 (N.W.T.S.C.), refd to. [para. 34].

R. v. Cairenius (R.), [2008] O.T.C. Uned. B93; 232 C.C.C.(3d) 13 (Sup. Ct.), refd to. [para. 35].

R. v. Samra (K.S.) (1998), 112 O.A.C. 328; 41 O.R.(3d) 434; 129 C.C.C.(3d) 144 (C.A.), refd to. [para. 35].

1447743 Alberta Ltd. v. Calgary (City) et al. (2011), 502 A.R. 330; 517 W.A.C. 330; 41 Alta. L.R.(5th) 366; 2011 ABCA 84, refd to. [para. 36].

Bhajan v. Bhajan et al. (2010), 268 O.A.C. 82; 322 D.L.R.(4th) 332; 2010 ONCA 560, refd to. [para. 37].

Bhajan v. Bhajan (2010), 269 O.A.C. 335; 325 D.L.R.(4th) 653; 2010 ONCA 714, refd to. [para. 39].

Young v. Young (1989), 22 R.F.L.(3d) 444 (Alta. Q.B.), refd to. [para. 39].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (2nd Ed. 2006), p. 263 [para. 14].

Counsel:

Ronald J. Robinson, for the applicant;

Krysta H. Ostwald (Widdowson Kachur Ostwald Menzies LLP), for the respondent, G.G.

These applications were heard on November 20, 2013, before Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on December 6, 2013.