Phipps v. Phipps, 2001 ABQB 778

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 06, 2001
• Citations: 2001 ABQB 778;(2001), 300 A.R. 141 (QB)

Phipps v. Phipps (2001), 300 A.R. 141 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. SE.066

Jillian Amber Phipps (Brennan) (plaintiff) v. Christopher John Phipps (defendant)

(Action No. 4803 119933; 2001 ABQB 778)

Indexed As: Phipps v. Phipps

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

September 14, 2001.

Summary:

A mother applied for a divorce. She also sought an order controlling the father's access and to have income imputed to the father for child support purposes.

The Alberta Court of Queen's Bench granted the divorce. The court refused to order controlled access. The court determined the appropriate child support.

Courts - Topic 587

Judges - Duties - To decide according to evidence and pleadings - A mother sought to have income attributed to the father on the basis that he was intentionally under-employed or unemployed - The mother claimed $300 monthly child support - The father did not respond to the claim - The Alberta Court of Queen's Bench held that it could draw an adverse inference against the father and award the mother the $300 support claimed - However, the court refused to impute further income to the father because, based on the pleadings, the maximum that could be awarded was $300 per month - See paragraphs 60 to 62.

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - A mother sought child support - She claimed $300 - The father had adequate notice, but failed to attend the hearing - The average of the father's two most recent income tax assessments was $22,058 - The table amount for that income was $194 per month - The Alberta Court of Queen's Bench held that it could draw an adverse inference from the father's failure to bring evidence before the court - Where the father did not appear to oppose the mother's claim for $300 monthly child support, the court assumed that the father's income was in excess of his average income for the last two years and that $300 was a reasonable amount of support - See paragraphs 65 and 66.

Family Law - Topic 1991

Custody and access - Access - Considerations in awarding access - Welfare of child - A couple separated - Their daughter lived with the mother - The father exercised liberal access - However, he had a history of "disappearing" and missing access visits - The mother sought a staged system of access - The Alberta Court of Queen's Bench rejected the proposed plan - It was excessively controlling with respect to the father and excessively permissive in relation to the daughter (aged eight) because it allowed her to determine whether there should be access - It was likely to alienate the daughter from the father - The mother admitted that the father's past liberal access was in the daughter's best interests - There was no evidence that the proposed plan or the suspension of the father's access was in the daughter's best interests - The father should be provided with a usual access regime for a parent living far away from the custodial parent - See paragraphs 38 to 48.

Family Law - Topic 2004

Custody and access - Access - Grounds for refusal, restriction or variation of access - [See Family Law - Topic 1991 ].

Family Law - Topic 2011

Custody and access - Access - Access awards - At child's discretion - [See Family Law - Topic 1991 ].

Family Law - Topic 2072

Custody and access - Joint custody - When available - A couple separated - The mother sought sole custody of their daughter - The father had a history of falling out of sight - The Alberta Court of Queen's Bench held that it would be inappropriate to grant a parent custodial rights, where that parent was not in regular contact with the child and the other parent - It would be wrong to require the mother to consult with the father over routine, serious or urgent matters - The court stated that "The first necessity for consultation is availability; because [the father] has made himself unavailable, he has disentitled himself to the opportunity for joint parenting." - See paragraphs 36 and 37.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Section 19(1)(a) of the Federal Child Support Guidelines allowed the court to impute income where "the spouse is intentionally under-employed or unemployed" - The Alberta Court of Queen's Bench stated that "The wording of the section - when read in its entirety - makes it clear, ... that the intentional unemployment of a parent required as a pre-requisite to an order deeming employment income need not be with the intention of avoiding child support; were it otherwise, Parliament would not have needed to create an express exemption for the parent who is unemployed because of the needs of the child or because of a reasonable educational need of the parent." - See paragraph 50.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Section 19(1)(a) of the Federal Child Support Guidelines allowed the court to impute income where "the spouse is intentionally under-employed or unemployed" - The Alberta Court of Queen's Bench stated that in determining whether to impute income the test was that "a parent must obtain and maintain that type of employment which is reasonable in all the material circumstances" - The court should take into account the parent's work history and the lifestyle of the family while it lived together - See paragraphs 53 to 57.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See Courts - Topic 587 and Evidence - Topic 2401 ].

Cases Noticed:

Schifer v. Schifer (2000), 282 A.R. 331; 2000 CarswellAlta 1477 (Q.B.), refd to. [para. 5].

Lévesque v. Comeau, [1970] S.C.R. 1010, refd to. [paras. 6, 34].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201, refd to. [paras. 6, 34].

Donovan v. Donovan (2000), 150 Man.R.(2d) 116; 23 W.A.C. 116 (C.A.), refd to. [para. 6].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261 (C.A.), refd to. [para. 6].

Van Gool v. Van Gool (1998), 113 B.C.A.C. 200; 184 W.A.C. 200; 166 D.L.R.(4th) 528 (C.A.), refd to. [paras. 6, 53].

Hanmore v. Hanmore (2000), 255 A.R. 163; 220 W.A.C. 163 (C.A.), refd to. [paras. 6, 54].

Strand v. Strand (1999), 246 A.R. 70 (Q.B.), refd to. [para. 51].

Counsel:

Lori J. Johnson, for Jillian Phipps;

No one appeared for Christopher Phipps.

This matter was heard on September 6, 2001, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on September 14, 2001.