Zhivotkevish v. Udovichenko, 2011 ABQB 172

Court of Queen ’ s Bench of Alberta Citation: Zhivotkevish v. Udovichenko, 2011 ABQB 172 Date: 20110316 Docket: 4803 148960, 4803 154572 Registry: Edmonton Between: Yuri Petrovich Zhivotkevish Plaintiff - and - Anna Vladimirovna Udovichenko Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] A Divorce Judgment Without Oral Evidence was issued in this Court on May 25, 2009 between these parties on the application of the Plaintiff.

On July 12, 2010 the Defendant issued a Family Law Notice of Motion seeking to revoke the Divorce Judgment granted on May 25, 2009, and the Certificate of Divorce granted June 29, 2009.

The Defendant also sought an Order for spousal support retroactive to December 1, 2008, and an Order for Guideline child support of the child of the marriage born September 4, 1996, retroactive to December 1, 2008. [ 2 ] The Defendant’s application to revoke was based on her assertion that she had never been served with the Statement of Claim for Divorce or Amended Statement of Claim for Divorce, so therefore these parties continued to be married. The Affidavit of

Applicant it is alleged in support of the Statement of Claim and Amended Statement of Claim for Divorce was sworn prior to the one year period of separation having been completed.

The Defendant also alleged that the Affidavits of Service for the Statement of Claim and Amended Statement of Claim for Divroce sworn by the Plaintiff’s brother on March 19 and March 27, 2009 were false. [ 3 ] The Defendant deposes that she found out about the divorce from a friend of the Plaintiff’s in August 2009, and she could not understand how she was divorced if had never been served with any divorce papers or discussed the subject of divorce.

A search of the Court Record at the Law Courts Building revealed that amongst other things the Affidavit of the Applicant allegedly falsified the date of separation by several months. [ 4 ] Immediately upon learning of the alleged “divorce”, the Defendant deposes that she had a lawyer appointed to represent her, and her application was granted on September 1, 2010. An Order issued in this Court directed that the Divorce Judgment and Certificate of Divorce be set aside, and directed that the Statement of Claim and Amended Statement of Claim had expired in accordance with Rule 11(1) of the Alberta Rules of Court .

Previous counsel for the Plaintiff at that time, who is an experienced matrimonial law practitioner, did not consent or agree to this Order, which was granted despite two conflicting Affidavits being sworn.

Although the Defendant swore that she never was served with any documents, the Plaintiff’s brother indicated that she was not only served once but twice with the divorce documentation. [ 5 ] The present application before the Court is whether the divorce proceedings should be severed from the corollary relief matters, as the Plaintiff has now reissued divorced proceedings and clearly has grounds upon which to proceed. [ 6 ] The Defendant is opposing the severing of the divorce proceedings from the corollary relief matters based on her claim for child support and spousal support.

Her counsel indicated during the hearing of this matter that if a divorce was granted, the Defendant would be deported from Canada because she is in the process of applying for a work permit in order to stay here as a married but separated person. [ 7 ] Based on counsel’s submissions I decided to give an opportunity to each counsel as officers of the Court to advise the Court as to what is the current situation was with respect to immigration proceedings involving both parties, as well as criminal charges that have apparently been laid in this matter against the Plaintiff for bigamy, and against his brother for swearing false Affidavits. [ 8 ] With respect to the immigration issue, counsel for the Plaintiff now advises based on her research and information that the first work permit that the Defendant received when she came to Canada was due to her marriage.

However with respect to the second and current work permit, she is applying as a married spouse separated from her husband, and it is submitted that the granting of the divorce in this matter will not affect her current application in any way. [ 9 ] As for the Plaintiff’s immigration and criminal charges, there is an Exclusion Order granted against him by Immigration Canada calling for his deportation, however he will not be deported until the criminal charges against him are dealt with.

It is submitted that if this Court does not grant a Divorce Judgment now, the sponsorship application being made by the Plaintiff’s new common-law “ wife” to have him remain in Canada permanently will be cancelled. The cancellation of that sponsorship application will be detrimental to the Plaintiff as he may be deported once his criminal charges are dealt with.

However if the Plaintiff can proceed with his new “wife’s” sponsorship application, he will become a permanent resident of Canada and he will not be deported. [ 10 ] As for the child support issue, the Plaintiff submits that he never stood in loco parentis to the Defendant’s child from a previous relationship. His Affidavit filed on February 18, 2011 states that at the time that these parties were married, the child was already 6 years of age and throughout their three year relationship the child was in regular contact his biological father whom he was calling “papa”.

The Plaintiff deposes that he and the child never developed any relationship or special bond. [ 11 ] As for spousal support, these parties were only together for approximately 3 years, and the Defendant waited almost a year after “discovering” that the Divorce Judgment had been granted, and a year and a half after the separation of the parties, to file the application seeking the revocation of the Divorce Judgment. [ 12 ] The Plaintiff submits that there is no merit to any claim for support, and that the grounds for divorce clearly exist now, even if they may not have existed at the time the divorce was granted.

[ 13 ] The Plaintiff submits that the Divorce Judgment will not affect the Defendant’s current work permit extension application in any way, and that the granting of the Divorce Judgment will ensure that the Plaintiff’s sponsorship application proceeds smoothly. Conclusion [ 14 ] The issue to be addressed is whether the Plaintiff should be granted a severance of the Divorce Judgment from the corollary relief application. [ 15 ] The Defendant’s position is that there should be no severance because the issue of corollary relief and particularly the issue of child support is outstanding.

In November 2010 the Defendant filed a Family Law Application for child maintenance for the child born September 1996, retroactive to December 1, 2008; and for spousal support. [ 16 ] The Plaintiff argues that there is no basis for either application as he is not in loco parentis to the Defendant’s child from a previous relationship, and the Defendant is not entitled to any spousal support. [ 17 ] In a Supplemental Affidavit sworn by the Plaintiff on March 5, 2011, he deposes that the Crown has now dropped the bigamy charge against him, although he still faces pending criminal charges for violating his work permit, and Immigration Canada has been granted an Exclusion Order authorizing his removal/deportation from Canada. [ 18 ] The Plaintiff however wants the Divorce Judgment to be granted immediately as he is in the process of finalizing his sponsorship application by his present Canadian partner, and he has been advised by his immigration lawyer that as a married spouse he has a much better chance of staying in Canada and becoming a permanent resident, then as simply common-law partner. [ 19 ] It is obvious that these parties will not be able to reconcile, and that they do not want to be married any longer.

There is however no independent evidence before me that the bigamy charges have in fact been dropped by the Crown against the Plaintiff, other than his Affidavit swearing to this. [ 20 ] Both parties appear to be taking advantage of their status as being either married or unmarried to enhance their respective immigration applications. For example the Plaintiff amongst other things alleges that he was asked to submit a request for a new work permit for the Defendant indicating that they were still married, when in fact they had already separated.

It is also alleged that the Defendant conveniently described herself as married but separated as on September 11, 2009 in her own application for a work permit after she found out about the divorce from the Plaintiff’s friend in August 2009. The Plaintiff obviously wants to be considered unmarried so that his new partner can sponsor him. The Defendant wants to remain married but separated. [ 21 ] What is however important to the Court is that there still must be a determination made with respect to the Plaintiff’s child maintenance responsibility, if any, under Section 11(1) (

b) of the Divorce Act . I conclude that insufficient information has been put forward to satisfy the Court that reasonable arrangements for child support have been made. Given that there are directly conflicting Affidavits with respect to the Defendant’s claim that the Plaintiff stands in loco parentis to the child in question, this matter still has to be determined (along with the issues of spousal support and matrimonial property). [ 22 ] As the matter of child maintenance in particular is still to be resolved, I conclude that the Divorce Judgment should not be granted until the issue of corollary relief is dealt with. Heard on the 24 th day of February, 2011.

Dated at the City of Edmonton, Alberta this 16 th day of March, 2011. Donald Lee J.C.Q.B.A. Appearances: Katie Noel for the Plaintiff Kenneth J. Alyluia Gledhill Larocque for the Defendant