Levesque v. Levesque

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Smith, J.
• Citation: (1995), 166 A.R. 1 (QB)
• Date: 31 January 1995

Levesque v. Levesque (1995), 166 A.R. 1 (QB)

MLB headnote and full text

Claude Levesque (petitioner) v. Elvira Monique Levesque (respondent)

(Action No. 4803 78496)

Indexed As: Levesque v. Levesque

Alberta Court of Queen's Bench

Judicial District of Edmonton

Smith, J.

January 31, 1995.

Summary:

The Alberta Court of Queen's Bench, in a decision reported 124 A.R. 314, allowed a divorced wife's application for child support and fixed support accordingly. The husband appealed, claiming an inability to pay the support ordered.

The Alberta Court of Appeal, in a decision reported 155 A.R. 26; 73 W.A.C. 26, allowed the appeal and remitted the case to the Queen's Bench for rehearing in accor­dance with guidelines respecting the calcula­tion and apportionment of child support for two-income families. The wife applied for interim child support and retroactive child support. The husband applied for interim spousal support and to vary access.

The Alberta Court of Queen's Bench de­termined the amount of child support and dismissed the wife's application for retroac­tive child support. The court dismissed the husband's application for spousal support and adjourned his application to vary access.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - In divorce proceedings, a child maintenance order was set aside and remitted for reconsider­ation - The divorced wife claimed retro­active child support - The husband sought spousal support, pleaded poverty and sought a subsistence reduction - The hus­band paid $3,500 during the period between the setting aside of the order and the hearing of parties' application - Under the previous order he would have been required to pay $3,850 - The Alberta Court of Queen's Bench refused to exercise its discretion to order retroactive mainte­nance, where the wife delayed in comply­ing with the husband's request for dis­closure; the husband's partial payments were close to those ordered; and his low income provided him with little flexibility - See paragraphs 69 to 72.

Family Law - Topic 4004

Divorce - Corollary relief - Maintenance awards - Awards - Effect of income tax liability - [See third, eighth and ninth Family Law - Topic 4014 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced mother sought child support - The mother had a larger income than the father - In calculating the father and mother's combined gross income, the Alberta Court of Queen's Bench noted that the mother had more assets than the father because of her remarriage, her higher income and setbacks suffered by the father due to his disability, but declined to assign gross income arising out of capacity to earn - The court excluded the income of the mother's new husband, because there had been no legal relationship created between him and the children - See para­graphs 13 to 18.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced mother sought child support - Monthly child care costs totalled $1,600 - The father also incurred monthly access costs of $340 - The Alberta Court of Queen's Bench added the husband's monthly access costs ($340) to the month­ly child care costs ($1,600) to determine the total cost of child care ($1,940/month or $23,290/year) - The court noted that the percentage of total costs to the parents' gross income was 34 percent which, although a little higher then the suggested litmus test for a two child family, was within reason - See paragraphs 19 to 25.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced mother sought child support - The Alberta Court of Queen's Bench ap­portioned the costs of child care, which included the father's access costs, between the parents according to the proportion each parent's gross income was to the parents' combined gross income - The court then deducted the father's access costs from his share of costs to determine the father's contribution to child care - See paragraphs 26 to 29 - The court then recalculated the assigned share to ensure that the father paid a sum sufficient to place approximately that share net of taxes in the mother's hands - See paragraphs 30 to 33.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife sought child support - The husband sought spousal support, pleaded poverty and sought a subsistence reduction - In considering the issues, the Alberta Court of Queen's Bench stated that it preferred to evaluate subsistence claims in the context of the real cash flow of the parties - See paragraph 40.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife sought child support - The husband sought spousal support, pleaded poverty and sought a subsistence reduction - The husband grossed $28,160 - The wife was remarried and grossed $41,000 annually - After determining the husband's share of child care costs at $800, the Alberta Court of Queen's Bench stated that "[a] payor of child support does not receive a reduction in the nature of spousal support simply because they are poor." - See paragraph 36 - The court refused spousal support where an order would not meet the criteria under s. 27(7) of the Divorce Act - The court accepted the husband's plea of poverty and granted subsistence relief by reducing the monthly child support payable to $550 - See para­graphs 35 to 68.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife sought child support - The husband sought spousal support, pleaded poverty and sought a subsistence reduction - The Alberta Court of Queen's Bench reiterated that child support comes before debt and that the husband's debt of $10,000 did not justify a reduction in the amount of child support payable - See paragraph 44.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife sought child support - The husband sought spousal support, pleaded poverty and sought a subsistence reduction - In considering the subsistence claim, the Alberta Court of Queen's Bench referred to the Court of Appeal's directions that "if the standard of living of the cus­todial parent must be reduced, access costs should be reduced before reducing the child's basic necessities of life." - The court stated that a reduction of access costs, though reducing the total child care costs, would result in increased child sup­port payments - The court stated that where it was dealing with a plea of pov­erty from the payor (the husband), and the payee (the wife) and the children were not suffering for necessities, there was no reason to adjust the award - See para­graphs 45 to 49.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife sought child support - The husband sought spousal support, pleaded poverty and sought a subsistence reduction - The husband sought leave to pay child support without a tax gross up - The husband requested the court to create a trust for the benefit of the children to which the support payments would be made, thus bypassing the income tax requirement to report the payments as income paid to a spouse - In considering the subsistence claim, the Alberta Court of Queen's Bench stated that it was not pre­pared to grant the request, where there was not an advance tax ruling - See paragraphs 51 to 53.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife claimed child support as a married person without disclosing tax benefits - The husband sought spousal support, pleaded poverty and sought a subsistence reduction - Because the wife was remarried to a man who made less money than she did, by operation of income tax law, the income tax benefits relating to the children were transferred to her new husband while she retained the child tax credit - In considering the sub­sistence claim, the Alberta Court of Queen's Bench declined to raise the child support to adopt the fiction that the wife was a single mother with the attendant tax benefits - See paragraphs 54, 56.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - Considerations - A divorced wife claimed child support - The husband sought spousal support, pleaded poverty and sought a subsistence reduction - In considering the subsistence claim, the Alberta Court of Queen's Bench concluded that there were special circum­stances which warranted reduction in the quantum of child support to be paid - The court took into consideration the income of the wife's new husband, the fact that the wife was in a higher tax bracket than the husband and that the children would not suffer for necessities - See paragraphs 58 to 66.

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance awards - Awards - Considerations - General - In divorce proceedings, the Alberta Court of Queen's Bench stated that a "subsistence reduction" generally "... means a party who has little income may seek to have all or a portion of their income set aside for their own use, as opposed to the use of their spouse or children, in order to avoid being further impoverished." - See paragraph 34.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance awards - Considerations - Financial con­sequences of child care - [See second and fifth Family Law - Topic 4014 ].

Family Law - Topic 4022.2

Divorce - Corollary relief - Maintenance awards - To husband - Considerations - [See fifth Family Law - Topic 4014 ].

Family Law - Topic 4025

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of income of spouse of claimant - [See first and tenth Family Law - Topic 4014 ].

Words and Phrases

Subsistence reduction - In the context of family support obligations, the Alberta Court of Queen's Bench stated that a "sub­sistence reduction" generally means "... a party who has little income may seek to have all or a portion of their income set aside for their own use, as opposed to the use of their spouse or children, in order to avoid being further impoverished." - See paragraph 34.

Cases Noticed:

Levesque v. Levesque (1994), 155 A.R. 26; 73 W.A.C. 26; 4 R.F.L.(4th) 375, appld. [para. 1].

Paras v. Paras, [1971] 1 O.R. 130; 2 R.F.L. 323; 14 D.L.R.(3d) 546 (C.A.), refd to. [para. 6].

Murray v. Murray (1991), 123 A.R. 68; 35 R.F.L.(3d) 449 (Q.B.), not folld. [para. 38].

Willick v. Willick (1994), 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 161 (S.C.C.), consd. [para. 39].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15 [para. 12]; sect. 15(7)(a), sect. 15(7)(b), sect. 15(7)(c), sect. 15(7)(d) [paras. 36, 37, 68].

Counsel:

K.F. Schwab, for the petitioner;

C.J. Skrobot, for the respondent.

This matter was heard before Smith, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered reasons for order in Chambers on January 31, 1995.