Pollard v. Pollard, (1999) 257 A.R. 36 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 15, 1999
• Citations: (1999), 257 A.R. 36 (QB)

Pollard v. Pollard (1999), 257 A.R. 36 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. JA.018

Christine Margaret Pollard (petitioner/respondent) v. Philip Edward Pollard (respondent/applicant)

(Action No. 4803A 101529)

Indexed As: Pollard v. Pollard

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

December 17, 1999.

Summary:

The parties divorced. The minutes of settlement provided that the parties had joint custody of the children, the children's pri­mary residence was with the mother and the father pay child support. Child support was varied pursuant to the Federal Child Support Guidelines. The father applied to vary child support. At issue, inter alia, was: whether a child attending university and living away from home was a child of the marriage; the parties' Guideline income; and whether the father should pay retroactive child support.

The Alberta Court of Queen's Bench determined the issues accordingly, ordering the father to pay child support pursuant to the Guidelines.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - The father applied to vary child support - The mother contributed 80% to the son's schol­arship trust fund after the parties settled their matrimonial property - She received the fund's principal investment ($6,900) - The son would receive the accrued interest in the future - The mother asserted that if the father paid his proportionate share of the son's tuition and books, then she would use the $6,500 to pay her proportionate share, if the fund's interest payments were insufficient - The Alberta Court of Queen's Bench held that "the court cannot direct a parent to use funds from such an educa­tional trust fund for the educational expenses of one's children unless the parties are in agreement to do so, or that parent has not been fulfilling his or her joint obligation in that regard" - See para­graph 85.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - The father applied to vary child support - The mother contributed 80% to the son's schol­arship trust fund after the parties settled their matrimonial property - The parties contributed 20% during the marriage for the son's education, which the wife received in the matrimonial property settle­ment - The wife received the fund's princi­pal investment ($6,900) - The son would receive the accrued interest - The mother asserted that if the father paid his propor­tionate share of the son's tuition and books, then she would use the $6,500 to pay her proportionate share of the son's educational expenses, if the fund's interest payments were insufficient - The Alberta Court of Queen's Bench held that: 20% of the $6,900 was for the son's educational expenses; 20% of any subsequent payment was credited against the interest payment; and the mother was credited with the balance of the fund - See paragraphs 79 to 90.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - [See Family Law - Topic 4045.11 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The parties divorced - The husband applied to vary child support - The wife sought a lump sum amount for retroactive child support, asserting that she was the sole caregiver of the children for nine years - The husband asserted that: they both had experienced legal counsel to negotiate their child sup­port orders; the wife was a law student during the divorce and was practising family law; and the wife could have applied for more support, which she did - The Alberta Court of Queen's Bench denied the wife's application for retroac­tive child support - The court stated that the issue was how to best establish a "fair standard of support for the children that ensures that they continue to benefit from the financial means of both spouses after separation" - See paragraphs 134 to 150.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - [See Family Law - Topic 4045.11 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines - Special or extraordi­nary expenses - [See first and second Family Law - Topic 3998 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribu­tion of income - The father applied to vary child support pursuant to the Federal Child Support Guidelines - At issue, inter alia, was whether the rental income of $1200 monthly should be added to the father's income - The father asserted that the rental income was offset by the expenses incurred and that he showed a loss - The mother asserted that the net rental income should be added to the father's income - The Alberta Court of Queen's Bench held that the net rental income should be added to the father's income - See paragraphs 97 to 103.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribu­tion of income - The father applied to vary child support pursuant to the Federal Child Support Guidelines - The mother, a law­yer, earned a professional income against which she deducted her business expenses - At issue, inter alia, was whether the mother's deduction for home office expense; accounting expenses; interest expense on her line of credit; motor vehicle expenses and capital cost allowance should be added to her income for the purpose of calculating her income pursuant to the Guidelines - The Alberta Court of Queen's Bench held that: the accounting expenses, motor vehicle expenses, interest and capital cost allowance were proper deductions, but the home office expenses were not proper deductions - See para­graphs 104 to 129.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines - Children over the age of majority - The parties divorced - The minutes of settlement provided that the father pay child support until the children were 18 years old, but to continue to the age of 21 if the child remained dependent and in full-time attendance at a recognized educational institution - A recent consent order provided that the Federal Child Support Guidelines applied - The daughter lived away from home while attending university and worked during the summer break - The father applied to vary child support, asserting, inter alia, that the daughter was not a child of the marriage - The Alberta Court of Queen's Bench held that the daughter was a child of the mar­riage pursuant to the Divorce Act, ordering the father to pay the Guideline amount of child support, except during the summer months - See para­graphs 18 to 64.

Cases Noticed:

Whitton v. Whitton (1989), 34 O.A.C. 31; 21 R.F.L.(3d) 261 (C.A.), refd to. [para. 32].

Elliot v. Elliot, [1993] B.C.J. No. 328 (S.C.), refd to. [para. 32].

Ciardullo v. Ciardullo (1995), 15 R.F.L.(4th) 121 (B.C.S.C.), refd to. [para. 32].

Tapson v. Tapson (1971), 2 R.F.L. 305 (1971), 2 R.F.L. 305 (Ont. C.A.), refd to. [para. 33].

Janzen v. Janzen (1980), 18 R.F.L.(2d) 152 (B.C.S.C.), refd to. [para. 33].

McEwen v. Laasko (1985), 46 R.F.L.(2d) 411 (Ont. H.C.), refd to. [para. 34].

Chaban v. Chaban (1985), 37 Man.R.(2d) 170; 22 D.L.R.(4th) 477 (Q.B.), refd to. [para. 35].

Law v. Law (1986), 2 R.F.L.(3d) 458 (Ont. H.C.), refd to. [para. 36].

Farden v. Farden (1993), 48 R.F.L.(3d) 60 (B.C.S.C.), refd to. [para. 37].

Wesemann v. Wesemann (1999), 13 B.C.T.C. 233 (S.C.), refd to. [para. 37].

Darlington v. Darlington (1998), 99 B.C.A.C. 134; 162 W.A.C. 134; 32 R.F.L.(4th) 406 (C.A.), refd to. [para. 38].

Fraser v. Jones (1996), 17 R.F.L.(4th) 218 (Sask. Q.B.), refd to. [para. 38].

Busko v. Busko (1990), 28 R.F.L.(3d) 399 (Ont. H.C.), refd to. [para. 38].

Bates v. Bates (1995), 165 A.R. 71; 89 W.A.C. 71; 10 R.F.L.(4th) 261 (C.A.), refd to. [para. 39].

Fair v. Jones, [1999] N.W.T.J. No. 44 (S.C.), refd to. [para. 40].

Sherlow v. Zubko (1999), 247 A.R. 66 (Q.B.), refd to. [para. 41].

Broumas v. Broumas (1998), 233 A.R. 1 (Q.B.), refd to. [para. 41].

Jackson v. Jackson (1988), 69 Sask.R. 148 (Q.B.), refd to. [para. 41].

Duncan v. Duncan (1989), 74 Sask.R. 100 (Q.B.), refd to. [para. 41].

Van de Pol v. Van de Pol (1996), 179 A.R. 221 (Q.B.), refd to. [para. 42].

Welsh v. Welsh (1998), 79 O.T.C. 81 (Gen. Div.), refd to. [para. 43].

Zaba v. Bradley (1996), 140 Sask.R. 297 (Q.B. Fam. Div.), refd to. [para. 45].

Krueger v. Tunison (1999), 183 Sask.R. 255 (Q.B. Fam. Div.), refd to. [para. 45].

Louise v. Scheur (1995), 15 B.C.L.R.(3d) 270 (S.C.), refd to. [para. 45].

Newman v. Thompson (1997), 118 Man.R.(2d) 177; 149 W.A.C. 177 (C.A.), refd to. [para. 47].

Gamache v. Gamache, [1999] A.J. No. 474 (Q.B.), refd to. [para. 51].

Innes v. Innes (1994), 154 A.R. 346 (Q.B.), refd to. [para. 52].

Bachorick v. Verdejo (1999), 180 Sask.R. 89; 205 W.A.C. 89 (C.A.), refd to. [para. 85].

Omah-Maharajh v. Howard, [1998] 7 W.W.R. 342; 215 A.R. 159; 58 Alta. L.R.(3d) 236 (Q.B.), refd to. [para. 129].

Lauderdale v. Lauderdale (1996), 180 A.R. 81 (Q.B.), revd. on other grounds (1997), 200 A.R. 198; 146 W.A.C. 198 (C.A.), refd to. [para. 129].

Jaasma v. Jaasma, [1999] A.J. No. 1186 (Q.B.), refd to. [para. 129].

Henderson v. Henderson, [1999] A.J. No. 853 (Q.B.), refd to. [para. 129].

Macbeth v. Macbeth (1998), 214 A.R. 104; 36 R.F.L.(4th) 390 (Q.B.), refd to. [para. 141].

Wilkinson v. Wilkinson (1998), 233 A.R. 131; 43 R.F.L.(4th) 258 (Q.B.), refd to. [para. 142].

Lowry v. Lowry, [1997] A.R. Uned. 273; 56 Alta. L.R.(3d) 139 (Q.B.), refd to. [para. 143].

Clark v. Kubek (1988), 214 A.R. 43; 37 R.F.L.(4th) 244 (Q.B.), refd to. [para. 143].

Collins v. Collins (1998), 221 A.R. 111 (Q.B.), refd to. [para. 143].

Hirsch v. Hirsch (1999), 253 A.R. 105 (Q.B.), refd to. [para. 144].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261; 17 R.F.L.(4th) 88 (C.A.), refd to. [para. 144].

Dahl v. Dahl (1995), 178 A.R. 119; 110 W.A.C. 119 (C.A.), refd to. [para. 144].

Haisman v. Haisman (1994), 157 A.R. 47; 77 W.A.C. 47; 7 R.F.L.(4th) 1 (C.A.), refd to. [para. 144].

Allen (Guardian ad litem) v. Allen (1994), 9 R.F.L.(4th) 48 (B.C.S.C.), refd to. [para. 145].

T.W. v. D.C. (1999), 239 A.R. 284 (Q.B.), refd to. [para. 145].

Counsel:

Ares Kvill, Deborah Miller and Patricia Kvill, for the petitioner;

Barr Picard and Steven N. Mandziuk, for the respondent.

This matter was heard on September 15, 1999, before Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on December 17, 1999.