L.L. v. G.R.B., (2008) 455 A.R. 248 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 06, 2008
• Citations: (2008), 455 A.R. 248 (QB);2008 ABQB 536

L.L. v. G.R.B. (2008), 455 A.R. 248 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. SE.022

L.L. (applicant) v. G.B. (respondent)

(FL03 06367; 2008 ABQB 536)

Indexed As: L.L. v. G.R.B.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

August 29, 2008.

Summary:

B. and L. had a 15 year relationship and two children born in 1983 and 1986. L. applied, inter alia, for retroactive child support back to 2001 because of increases in B.'s income.

The Alberta Court of Queen's Bench allowed the application, ordering B. to pay retroactive maintenance in accordance with the Child Support Guidelines back to 2002, when B. first had notice that L. was seeking an adjustment of support.

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.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - B. and L. had a 15 year relationship and two children born in 1983 and 1986 - The parties entered in to a separation agreement in 1996 which required B. to pay child support - In 2000, the agreement was varied to provide for Guideline support (the 2000 order) - The 2000 order also provided that support continue while the children were in school or university - In 2008, B. applied to vary the 2000 order, seeking retroactive child support back to 2001 for the children (now 21 and 25) because of increases in B.'s income - B. argued that the application was out of time pursuant to the provisions of the Parentage and Maintenance Act - The Alberta Court of Queen's Bench held that if B.'s support obligations were governed entirely by the Act, then the application was out of time, because L. would have had to apply for a variation under s. 18 of the Act before the children turned 18 - However, the court concluded that the separation agreement continued to govern matters of child support to the extent it was not inconsistent with the 2000 order - Therefore, the time limit under the Act had no application to this matter - Rather, this was an application to vary an existing court order, and for relief under a valid agreement between the parties - See paragraphs 1 to 77.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - B. and L. had a 15 year relationship and two children born in 1983 and 1986 - The parties entered into a separation agreement in 1996 which required B. to pay child support - In 2000, the agreement was varied to provide for Guideline support (the 2000 order) - The 2000 order also provided that support continue while the children were in school or university - In 2008, B. applied to vary the 2000 order, seeking retroactive child support back to 2001 for the children (now 21 and 25) because of increases in B.'s income - The Alberta Court of Queen's Bench found that B.'s support obligations were not governed solely by the Maintenance and Parentage Act, but by the separation agreement and the 2000 order - The court held that it had jurisdiction under the 2000 order and the separation agreement to order retroactive maintenance, including maintenance for periods when the children were over 18, but attending school and living with L. - Having regard to increases in B.'s income, which fluctuated between $75,860 in 2001 and $101,200 in 2006, B. should have been paying more under the Guidelines - The court concluded that this was an appropriate case for a retroactive award where B. breached his obligations under both the separation agreement and the 2000 order - See paragraphs 78 to 109.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - B. and L. had a 15 year relationship and two children born in 1983 and 1986 - The parties entered into a separation agreement in 1996 which required B. to pay child support - In 2000, the agreement was varied to provide for Guideline support (the 2000 order) - The 2000 order also provided that support continue while the children were in school or university - In 2008, B. applied to vary the 2000 order, seeking retroactive child support back to 2001 for the children (now 21 and 25) because of increases in B.'s income - The Alberta Court of Queen's Bench ordered retroactive support to the effective date of notice (i.e., Sept. 12, 2002, when L. first asked B. for financial disclosure) - The court noted that although the jurisprudence provided that generally an award should not be made retroactive more than three years before formal proceedings were taken, here, from the time the first demand was made in September 2002, until he had formal notice in 2004, B. could be under no misapprehension about L.'s intentions to seek increased maintenance - Any other delay was reasonably explained and there was nothing blameworthy in L.'s conduct - B.'s conduct was blameworthy - B. did not suggest that any retroactive award would be a hardship to him or that he could not afford to pay the amount ordered - The court calculated the retroactive maintenance accordingly based on the Guidelines amounts - See paragraphs 78 to 138.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - [See all Family Law - Topic 2211 ].

Family Law - Topic 3357

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - Maintenance of children - [See first Family Law - Topic 2211 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The Alberta Court of Queen's Bench ordered the payor parent to pay his proportionate share of the cost of driving instruction for two children as a special expense under s. 7 of the Child Support Guidelines - See paragraphs 146 to 151.

Infants - Topic 2551.2

Parentage of children - Support and other claims - Retroactive order - [See first Family Law - Topic 2211 ].

Cases Noticed:

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; 2006 SCC 37, refd to. [para. 15].

P.T. v. R.B. et al. (2001), 296 A.R. 232; 2001 ABQB 739, refd to. [para. 41].

Z.C.C. v. P.A.R. (2005), 376 A.R. 373; 360 W.A.C. 373; 2005 ABCA 385, refd to. [para. 41].

D.B.S. v. S.R.G. (2005), 361 A.R. 60; 339 W.A.C. 60; 2005 ABCA 2, refd to. [para. 42].

M.C. v. V.Z. (1998), 228 A.R. 283; 188 W.A.C. 283 (C.A.), refd to. [para. 42].

D.M. v. W.C.P. (1996), 180 A.R. 373 (Q.B.), refd to. [para. 62].

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. 66].

Farden v. Farden, [1993] B.C.T.C. Uned. 782 (S.C. Master), refd to. [para. 95].

Renouf v. Bertol-Renouf (2004), 368 A.R. 106; 2004 ABQB 885, refd to. [para. 97].

McKinnon v. McKinnon (1998), 217 A.R. 342; 1998 ABQB 44, refd to. [para. 147].

Chalifoux v. Chalifoux (2008), 425 A.R. 361; 418 W.A.C. 361; 2008 ABCA 70, refd to. [para. 147].

Statutes Noticed:

Parentage and Maintenance Act, R.S.A. 2000, c. P-1, sect. 16(2)(c) [para. 40]; sect. 18(1) [para. 39].

Authors and Works Noticed:

Gordon, Marie L., "Making the Break": Support for Adult Children in 2006, in Contemporary Issues in Family Law: Engaging with the Legacy of James G. McLeod (2007), generally [para. 31].

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (2nd Ed. 2006), pp. 331, 333 [para. 147].

Counsel:

L.L., appeared on her own behalf;

Catherine M. Zrymiak (Skovberg, Hinz), for the respondent.

This application was heard on June 6, 2008, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on August 29, 2008.