Kamuchik v. Plesuk, 2010 ABQB 778

Court of Queen ’ s Bench of Alberta Citation: Kamuchik v. Plesuk, 2010 ABQB 778 Date: 20101222 Docket: 4803 107181 Registry: Edmonton Between: Sherry Lee Plesuk Plaintiff (Applicant) - and - Kelly William Kamuchik Defendant (Respondent) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Plesuk asks the court to impute gross annual income of approximately $70,000.00 to her former husband, a journeyman boilermaker, who earns a little less than $40,000.00; she argues that the respondent’s earning pattern, and his large support arrears constitute circumstantial evidence that he is deliberately under-employed to avoid child support obligations. She also asks the court to order Mr.

Kamuchik to pay, retroactive to January 1, 2008, s. 7 expenses for the parties’ son; the expenses claimed are school fees, including bus passes and field trips, extracurricular activities such as minor ball hockey and a major investment in hockey programs. [ 2 ] Ms. Plesuk’s applications are denied. [ 3 ] No income is imputed to Mr. Kamuchik: the evidence does not prove that his deliberate underemployment is caused by a

[ 3 ] No income is imputed to Mr. Kamuchik: the evidence does not prove that his deliberate underemployment is caused by a desire to avoid support obligations. As to his earnings, while Mr. Kamuchik’s employment history appears to reflect some self- indulgence, that does not equate to an intent to avoid financial responsibility for his son. As to arrears, Mr. Kamuchik, it is to be noted that Mr.

Kamuchik did not ask for a reduction of his support obligations even when his income more or less equalled his support obligations. [ 4 ] No retroactive award is made for s. 7 expenses: as the Supreme Court of Canada recently pointed out, the child support system in Canadian law is a demand system. Although Ms. Plesuk has, over the years, had a lawyer to deal with support issues, she only made a demand for s. 7 contributions in September, 2010. Therefore, if an award were to be made, it would only go back to the time of demand. [ 5 ] In any event, school fees and extracurricular expenses are not typically

section 7 expenses; on the contrary, they are the very kind of expenses for which child support is paid. In some circumstances, where the incomes of the parents are very low, even school fees can become s. 7 expenses. Here, given Ms. Plesuk’s income, which exceeds that of her former husband, no special circumstances exist to make school fees, etc., s. 7 expenses. [ 6 ] No prospective award of s. 7 expenses is made. Here, the only extraordinary child care expenses relate to the son’s extensive participation in hockey programs; the material submitted on this application establishes that Ms.

Plesuk is supportive of her son’s participation in hockey activities and that Mr. Kamuchik’s contribution to hockey expenses is roughly 5 times that of the mother. The father’s overall over-contribution to the child’s s. 7 expenses means that he should not, in addition, also contribute to the mother’s share of the s. 7 expenses. Cases and authority cited [ 7 ] By the court: D.B.S. v S.R.G. 2006 SCC 37 (CanLII) , [2006] 2 S.C.R. 231 , [2006] S.C.J. No. 37 ; Hunt v Smolis-Hunt 2001 ABCA 229 , (2001) 286 A.R. 248 . 1. Background [ 8 ] The parties were married in 1993, separated in 1997 and divorced in 2001.

There is one child of the marriage, a son who is 15 ½ years old. The divorce judgment was granted by way of proceeding without oral evidence; Ms. Kamuchik, now Plesuk, was represented by a lawyer and Mr. Kamuchik was noted in default. In the divorce judgment, Mr. Kamuchik was found to have a guideline income of $38,028.00 and Ms. Plesuk to have an income of $11,160.00. Mr. Kamuchik was ordered to pay child support of $330.00; there was no order for s. 7 expenses. Mr. Kamuchik was also ordered to pay spousal support of $500.00 per month.

The support provisions in the divorce judgment repeated the terms of interlocutory support orders granted in 1997 with respect to child support and 1999 with respect to spousal support. There was no order requiring the yearly exchange of financial information between the parties. [ 9 ] In mid-1996, Ms. Kamuchik was diagnosed with multiple sclerosis. Since her diagnosis, she has suffered relapses and remissions of her neurological disease, with varying effects on her employability. For example, Ms. Plesuk’s family physician has provided an opinion to Ms. Plesuk’s lawyer to the effect that Ms.

Plesuk has been completely unable to work since April, 1996. Nonetheless, in April 1997, Ms. Plesuk was encouraged by her treating neurologist to return to work as a secretary at Alberta Treasury Branch. In September 1997, the same neurologist reported to Ms. Plesuk’s then lawyer that Ms. Plesuk did not wish to return to work at that time. Ms. Plesuk had commenced sick leave a her place of employment in June 1997 and this leave was expected to continue for two years. However, since 1997, Ms. Plesuk has worked part-time from time to time, and has received CPP payments. For example, Ms.

Plesuk commenced employment with the City of Edmonton in late October 2007 and ceased work there in mid-February 2008. In February 2010, Ms. Plesuk had a return to work plan with the City of Edmonton pursuant to which she would gradually return to work over an 8 to 10 week period starting at 4 hours per day 3 times a week and slowly increasing thereafter with a predicted return to full time work in April 2010. In June 2010, the same neurologist who was treating Ms. Plesuk in 1997 wrote a “To Whom it May Concern” opinion to the effect that Ms.

Plesuk was excessively stressed at work and in her home environment, that she could not cope with the increasing stress in her life, and that the inability to cope was due primarily to her underlying multiple sclerosis. He strongly recommended that she work three days per week rather than five days per week. In September, 2010 Ms. Plesuk’s neurologist wrote to the disability management services of the City of Edmonton stating that he recommended that Ms. Plesuk be granted full disability pension as early as possible. [ 10 ] Over the years since 1997, Mr. Kamuchik ran up large arrears in his support obligation.

These arrears were largely paid off,

apparently with the help of his parents. Although Mr. Kamuchik has never taken proper steps to deal with his concerns about arrears, on this application he complains, for example, that in approximately October, 2001, his then wife’s legal costs of approximately $4,500.00 were added to his maintenance enforcement account. As a result of the arrears, Mr. Kamuchik became subject to various enforcement procedures including garnishment and attendance at hearings at the office of the Director of Maintenance Enforcement. [ 11 ] In June, 2010, Mr. Kamuchik filed a motion to both terminate spousal support and require Ms.

Plesuk to contribute to their son’s hockey expenses. Mr. Kamuchik subsequently abandoned that motion. [ 12 ] In September, 2010, Ms. Plesuk brought a motion to review Mr. Kamuchik’s guideline income and to require Mr. Plesuk to pay his pro rata share of s. 7 expenses from January 1, 2008. [ 13 ] Ms. Plesuk has submitted income tax returns or assessments showing line 150 total income as follows: 2009 $62,331.00 2008 $62,460.00 2007 $31,817.00 2006 $25,706.00 2005 $29,726.00 [ 14 ] Mr.

Kamuchik has submitted income tax returns or assessments showing line 150 total income as follows: 2009 $10,228.15 2008 $38,242.06 2007 $39,666.30 [ 15 ] Ms. Plesuk argues that Mr. Kamuchik could earn more money as a journeyman boilermaker; she attaches information from StatsCan to the effect that the median employment income for a journeyman boilermaker in 2005 was approximately $64, 400.00 and that the average employment income for such a worker is approximately $69,400.00. [ 16 ] Mr. Kamuchik has provided evidence concerning the termination of a representative number of his employments.

For example, in relation to a job he had between March 31, 2009 and April 4, 2009, he stated that he missed consecutive days due to the flu and was told on the third day of absenteeism that he was dismissed. [ 17 ] In relation to a job at Scotford in Ft. Saskatchewan, which he started on June 17, 2009 and left on June 20, 2009, he states that he asked for a lay-off so that he could go to Ft. McMurray, “believe it or not as a foreman.

I had to quit for my release, and wait 2 weeks for my name hire as is the rules in the Boilermaker Hall.” [ 18 ] In relation to a job that started on April 1, 2010 and terminated on April 10, 2010, Mr. Kamuchik states: Our rigging-crew had an incident with the crane. 5 riggers refused to take a drug & pee test; I stuck with my crew. We had to test or quit; we quit because no one else - supervisors included - was asked to test, and they were there when the incident occurred also. [ 19 ] In a more general way, Mr. Kamuchik has sworn:

I get sick from the camps in Ft McMurray and I have been progressively getting worse. I have been in the trade for 20 years and I have always gone up to that hell-hole to work; but I am now going to look for work in town for the Boilermakers. I get sick almost every time I spend time in camp; it’s not my first year in the trade. [ 20 ] Mr. Kamuchik has provided a doctor’s “To Whom it May Concern” letter, dated November 3, 2010 which states: “Due to medical reasons, [Mr. Kamuchik] is currently unable to continue working. He will be off work indefinitely until further notice pending his progress.” [ 21 ] Mr.

Kamuchik has also provided a letter, dated December 9, 2010, from his union; the letter states, in part: The spring and fall are our busiest with new construction and maintenance; however the winters are extremely slow. [ 22 ] Ms. Plesuk has provided receipts for various payments made on behalf of the parties’ son; those amounts are the usual payments for school fees, including field trips, bus passes, special lunches, etc. The only unusual amount is $1,300.00, plus apparel cost for a hockey academy. She has also provided receipts for registration in a minor ball hockey association. [ 23 ] Mr.

Kamuchik has paid very large amounts for his son’s involvement in hockey, including summer hockey camps. For example, the yearly cost of his son’s skates is approximately $1,000.00 and the cost of one hockey stick is approximately $300.00. 2. Should the court impute income to Mr. Kamuchik? [ 24 ] The court does not impute income to Mr.

Kamuchik. [ 25 ] The Federal Child Support Guidelines allow courts to impute income to support payors in certain circumstances; the Alberta Court of Appeal has interpreted that provision to mean that courts should not impute income to payors who are deliberately unemployed or underemployed unless the court is satisfied that the support payor is deliberately attempting to avoid child support obligations: Smolis-Hunt . As I have had occasion to observe recently in another decision in another context, while some commentators are of the view that the Alberta Court of Appeal is unique in its

interpretation of the provisions relating to the imputation of income, the formula articulated by the Court of Appeal appears to me, if I may say so, to be a useful short-hand of the result of any court’s analysis. In other words, it appears to me that the result in a particular case is likely to be the same whether the application is heard in Alberta or elsewhere.

In Alberta, evidence of deliberate avoidance of child care obligations is likely to be circumstantial, although a surprising number of parents make surprisingly candid statements of intention in all matters relating to social obligations on social media networks. In the absence of direct statements of intention, both in Alberta and elsewhere, a support payor’s work history and other circumstantial evidence will be analysed to determine if the payor has the required intention.

a) Employment history [ 26 ] Mr. Kamuchik does have a chequered work history. However, after weighing the evidence which Mr. Kamuchik has provided about his work history, I am not able to conclude that he has voluntarily been unemployed so as to avoid paying his child financial support. [ 27 ] On the contrary, in some situations, if in a somewhat warped way, Mr. Kamuchik’s work history is negatively affected by his strong interest in supporting his son. For example, he states: When I asked my wife (ex) if she would take my son to his hockey tournmaent in Saskatoon, she said “I don’t go to Saskatchewan”. A

When I asked my wife (ex) if she would take my son to his hockey tournmaent in Saskatoon, she said “I don’t go to Saskatchewan”. A few days later she did go to Boston with her boyfriend for the marathon. That’s why I left my job this summer to take my son to Steve Adams’ Hockey School. [ 28 ] It is not necessary for me to attribute any specific intention to Mr. Kamuchik in relation to employment, and indeed it is difficult to do so. If anything, the evidence on this issue suggests that Mr. Kamuchik is somewhat self-indulgent, perhaps relying on the fact that he has financial back-up from his parents.

On the other hand, he has continually started new jobs and appears committed to taking jobs in the Edmonton area. Obviously, he would make more money if he took, and kept, a job in Fort McMurray; however, Canada’s child support legislation does not require parents to make such sacrifices including the giving up of regular contact with their children.

b) Arrears [ 29 ] There is no doubt that if a support payor allows large arrears of support to accumulate, or if the payor never voluntarily makes any payments, a court might infer that the payor is deliberately organizing their life to avoid making the court-ordered payments. [ 30 ] Mr. Kamuchik has the kind of bad payment history which requires analysis. Clearly, Mr. Kamuchik feels aggrieved by the support obligations imposed upon him; however, his concern appears to be directed towards the issue of spousal support rather than child support. Notably, Mr.

Kamuchik did not request a reduction or suspension of support obligations for 2009 when his income was so low that it essentially equalled his support obligations. Mr. Kamuchik has largely caught up with the arrears. [ 31 ] In weighing all of the evidence tendered on this application, I am unable to come to the conclusion that income should be imputed to Mr. Kamuchik. 3. Should the court order Mr. Kamuchik to pay

section 7 expenses? [ 32 ] The court concludes that Mr. Kamuchik should not be required to pay

section 7 expenses.

a) Are the expenses claimed by Ms. Plesuk s. 7 expenses? [ 33 ] The first issue that arises is the need to properly characterize the expenses claimed by Ms. Plesuk as s. 7 expenses. Most of these expenses are school fees, including bus passes and field trips, special school lunches, participating in extracurricular sports activities, and small payments for medication. [ 34 ] These expenses are not, typically, s. 7 expenses.

Section 7 expenses are meant to be extraordinary expenses, ones that don’t arise for most children. The expenses claimed by Ms. Plesuk are exactly the kind of expenses which are ordinary, which most parents would have to pay on behalf of their children, and which constitute the basis for ordering child support from the non-custodial parent. [ 35 ] Exceptionally, school fees and similar expenses might be considered s. 7 expenses, for example, if the parents’ incomes are so low that the payment of these expenses would not leave sufficient funds for the child’s proportionate costs of accommodation and food.

However, given the income of these parents, including the fact that the mother’s income is greater than the father’s, there is no basis for considering ordinary school and extracurricular expenses as extraordinary expenses. Indeed, as Mr. Kamuchik states in relation to the applicant’s claim for contribution: She is so poor that she is leaving to visit her parents in Arizona on Dec 16/2010 with my son.

b) Should an order be made retroactively?

[ 36 ] In any event, no retroactive award should be made here. [ 37 ] As the Supreme Court of Canada recently pointed out in D.B.S. , the child support system in Canadian law is a demand system. Although Ms. Plesuk has had a lawyer to deal with support issues, she only made a demand for s. 7 contribution in September, 2010. Therefore, if an award were to be made, it would only go back to the time of demand.

c) Should an order for the payment of s. 7 expenses be made prospectively? [ 38 ] The only true s. 7 expense which is paid here by the parents is the expense related to their son’s participation in hockey programs. The cost of that participation is extraordinary; it amounts to nearly a quarter of Mr. Kamuchik’s gross income. It appears that these parents, like many if not most parents, would do their best to give their son the fullest opportunity possible of exploring his potential even if there is no guarantee that their son will ever be able to earn a livelihood from hockey. Ms.

Plesuk’s direct contribution to the school hockey program is evidence that she supports her son’s major involvement in hockey. [ 39 ] Given the very high cost of this participation and the lack of any evidence concerning the objective wisdom of devoting such a large percentage of the parties’ financial resources to this expense, I will not require Ms. Plesuk to contribute pro rata to Mr. Kamuchik’s contribution to this expense. [ 40 ] On the other hand, given that one part of this expense is the only s. 7 expense claimed by Ms.

Plesuk and given the already great over-contribution made by the father to this expense, I will not require Mr. Kamuchik to pay a pro-rata share of the approximately $2,000.00 contribution made by Ms. Plesuk to the overall hockey expense which is approximately $12,000.00. 4. Costs [ 41 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 3 rd and 15 th days of December, 2010. Dated at the City of Edmonton, Alberta this 22 nd day of December, 2010. J.B. Veit J.C.Q.B.A.

Appearances: Michael L. Furman, Glenora Law Office For Ms. Plesuk Kelly William Kamuchik On his own behalf