Court of Queen ’ s Bench of Alberta Citation: S.A. v. D.H., 2011 ABQB 181 Date: 20110318 Docket: FL03 07584 Registry: Edmonton Between: S.A. Respondent - and - D.H. Applicant - and - Maintenance Enforcement Program Third Party _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background

[ 1 ] The Applicant applied for a stay of enforcement on December 8, 2010 before Justice Browne. On that date she granted a stay of enforcement, set the matter down for Special Chambers on February 11, 2011, and directed the Applicant to make an application to vary child support. [ 2 ] The Applicant has two files with Maintenance Enforcement Program:

i) File #0784-538 (the S.A. file) regarding S.A. and the child A.A. born in 1993; and ii) File #0907-634 (the K.N./K.D. file) regarding K.N./K.D and the child R.D. born in 1995. [ 3 ] On December 10, 2007 Justice Germain heard the Applicant on both matters. On the S.A. file Justice Germain set Crown arrears at $49,967.59 and ordered that there shall be no enforcement and no interest if the Applicant pays the ongoing child support and $100 per month towards arrears.

Justice Germain also ordered that the Applicant shall receive a $200 credit for each $100 paid. [ 4 ] On the K.N./K.D. file Justice Germain set child support arrears at $22,479.45 and ordered that the Applicant pay $519 per month in child support commencing January 1, 2008, and $175 per month towards child support arrears commencing January 1, 2008.

Justice Germain ordered that the Applicant would be entitled to a $200 credit for each payment of $175. [ 5 ] On July 22, 2009 the Maintenance Enforcement Program received a letter from D.H. wherein he alleged that he paid more money to his two accounts than what the Maintenance Enforcement Program had recorded. The Director conducted a file review and concluded that no money was missing. [ 6 ] On November 2, 2009 Justice Jeffrey ordered:– 1. That K.N./K.D. are the same person; 2.

That the child in this file is the biological child of the Applicant. [ 7 ] When Justice Browne heard the application for a stay of enforcement on December 8, 2010 the Applicant had several concerns:

i) There is no ongoing child support Order for the child A.A.; ii) The Orders granted by Justice Germain on December 10, 2007 do not match the transcripts of the hearing, specifically with respect to ongoing child support for A.A.; iii) The Director has created multiple files for each of the above files, which means that any money that D.H. pays to the Maintenance Enforcement Program is split between more than the two files in question; iv) The Applicant is not the father of the child R.D.;

v) Alternatively that the child R.D. has been adopted, which means that he is no longer obliged to pay child support for her.

Position of the Director

i) Is There Ongoing Child Support Order for the Child A.A.? [ 8 ] The Director’s position is that the Applicant’s current child support obligation for A.A. is $500 per month as per the Order of Justice Smith dated November 4, 1994. [ 9 ] When Justice Germain heard the matter on December 10, 2007 the amount of ongoing child support was not varied, and the stay of enforcement granted at that time was conditional on D.H. making payments toward both ongoing and arrears of child support.

He did not vary the Order of Justice Smith, and it is still in force. ii) Do the Orders Granted by Justice Germain on December 10, 2007 Reflect the Transcripts of the Hearing, Specifically Regarding Ongoing Child Support for the Child A.A.? [ 10 ] The issue of ongoing child support for S.A. the recipient was specifically not addressed because she apparently had not been served with an application to vary ongoing child support.

Justice Germain clearly states that the stay of enforcement is conditional upon the Applicant paying both ongoing and arrears of child support. iii) Has the Director Created Multiple Files for Each of the above Filed, Which Means That Any Money That D.H. Pays to the Maintenance Enforcement Program Is Split Between More than the Two Files in Question? [ 11 ] D.H. has only two accounts with the Maintenance Enforcement Program: File #0784-538 (the S.A. file), and File #0907-634 (the K.N./K.D. file).

The Maintenance Enforcement Program has reviewed D.H.’s files on two occasions and sent letters to him outlining the results of the reviews on August 4, 2009 and July 21, 2010. These letters are attached to the Affidavit of Lawrence Sutherland as Exhibits “K” and “N”. Exhibit “K” includes an attachment which outlines how certain payments between 1995 and 2008 were allocated between each of D.H.’s accounts. iv) Is the Applicant the Biological Father of the Child R.D.? [ 12 ] On November 2, 2009 Justice Jeffrey declared that the Applicant is the biological father to R.D.

v) Has the Child R.D. Been Adopted? [ 13 ] The Director has no record that the child has been adopted or that D.H. is otherwise no longer obligated to pay child support for her. [ 14 ] The Director is involved in this matter because the Respondent received income support during the following periods:

i) January 1, 2010 - present; ii) May 7, 2009 - June 30, 2009; iii) July 16 2002 - August 31, 2005; iv) June 1, 1999 - October 31, 2001;

v) June 1, 1998 - April 30, 1999; and vi) May 1, 1991 - March 31, 1998. [ 15 ] Pursuant to

Section 29 of the Income and Employment Supports Act , S.A. 2003, c. I-0.5, the Crown has a subrogated claim for child support, and the arrears that accumulated during that time are owed to the Crown. Analysis [ 16 ] The Applicant D.H. has two files with the Maintenance Enforcement Program:

i) File #0784-538 (the S.A. file) regarding S.A. and the child A.A. born in 1993; and ii) File #0907-634 (the K.N./K.D. file) regarding K.N./K.D and the child R.D. born in 1995. [ 17 ] The Court history of the S.A. file is as follows:–

i) May 13, 1994 Justice Berger ordered that the Applicant pay child support in the amount of $100 per month commencing June 1, 1994. ii) November 4, 1994 Justice Smith ordered that the Applicant pay child support in the amount of $500 per month commencing December 1, 1994. iii) December 10, 2007 Justice Germain set Crown arrears at $49,967.59 and ordered that there shall be no enforcement and no interest if the Applicant paid the ongoing child support and $100 per month towards arrears. Justice Germain also ordered that the Applicant shall receive $200 credit for each $100 paid. [ 18 ] The Court history of the K.N./K.D. file is as follows:–

i) May 8, 1995 Justice Gallant declared that the Applicant is the father of R.D. and ordered that the Applicant pay $250 per month in child support commencing June 1, 1995. ii) March 13, 2007 Justice Moreau ordered that the action be transferred from the Judicial District of Edmonton to the Judicial District of St. Paul. iii) December 10, 2007 Justice Germain set child support arrears at $22,479.45 and ordered that the Applicant pay $519 per month in child support commencing January 1, 2008, and $175 per month towards child support arrears commencing January 1, 2008. Justice Germain ordered that the Applicant would be entitled to a $200 credit for each payment of $175.

iv) November 2, 2009 Justice Jeffrey ordered:– 1. That K.N./K.D. are the same person; 2. That the child R.N./R.D. are the same person and the child is the biological child of the Applicant; 3. That the Applicant, the Respondent (K.N./K.D.) and the Maintenance Enforcement Program were to provide proof and/or statements of monies paid and received for child support within 30 days of the Order.

v) December 11, 2009 Justice Veit dismissed the Applicant’s application to reduce child support and arrears and declared that the Maintenance Enforcement Program complied with the Order dated November 2, 2009. [ 19 ] The Applicant has outlined several claims for relief in his submissions:–

i) Re: The K.N./K.D. file:– (

a) Has the child, R.D. been adopted? (

b) Production of birth certificate for R.D. (

c) Further DNA testing regarding R.D. (

d) According to the Official Transcript dated December 10, 2007 Justice Germain did not order D.H. to pay ongoing child support of $519 per month. (

e) Why do different documents have different names for K.N./K.D.? (

f) Cancellation of all interest, penalties, and arrears. ii) There is no Order requiring the Applicant to pay ongoing child support for the child A.A. iii) Why do the start dates of the annual statements not match for either file? iv) How did the Maintenance Enforcement Program come up with the amounts for the various garnishees?

v) On the Debtor’s Statement of Account why is money taken off, but then added back on? vi) Compensation for the enduring hardship due to the loss of his company, DSH Contracting, and the loss of his job with DRC Construction. vii) An investigation into all persons that have been involved in this matter. viii) Cancellation of all interest, penalties and arrears on the S.A. file.

Conclusion

i) The K.N./K.D. File :– (

a) Has the child, R.D. been adopted? (

b) Production of birth certificate for R.D. (

c) Further DNA testing regarding R.D. (

d) According to the Official Transcript dated December 10, 2007 the Judge did not order D.H. to pay ongoing child support of $519 per month. (

e) Why do different documents have different names for K.N./K.D.? (

f) Cancellation of all interest, penalties, and arrears. [ 20 ] The Applicant did not make an application regarding child support for R.D. so this matter was not before the Court. Even if the Court did consider this matter, the file is in the Judicial District of St. Paul, and the Respondent K.N./K.D. has not been served.

Therefore this Court cannot make a decision regarding paternity, arrears of child support, or ongoing child support for R.D. ii) There Is No Order Requiring the Applicant to Pay Ongoing Child Support for the Child A.A. [ 21 ] On November 4, 1994 Justice Smith ordered the Application to pay $500 per month in child support for the child A.A. On December 10, 2007 Justice Germain made an Order setting the Applicant’s arrears, and outlining a payment scheme regarding those arrears, however that payment scheme was conditional upon the Applicant making his payments of the ongoing support and payments to arrears on time.

Therefore the Order of Justice Smith dated November 4, 1994 continues to be in full force and effect. [ 22 ] The Applicant claims the Order dated December 10, 2007 does not reflect what happened at the hearing. If there was confusion about Justice Germain’s Order, then the issue should be brought back before Justice Germain in order to clarify his Order. [ 23 ] The Applicant’s claim is based on a statement made by his counsel at the hearing, at line 41 of page 19 of the Official Transcript where Mr.

Himsl, counsel for the Applicant says “So the ongoing order is not effective in any fashion”? [ 24 ] I conclude that the Transcript is either incorrect, or that Mr. Himsl misspoke. On page 19 of the Official Transcript of the hearing, the Director’s counsel asks if the payment scheme is conditional upon making ongoing payments (lines 8-9). This is confirmed by the Court (lines 11-12) and the Applicant’s counsel (line 16). Mr.

Himsl goes on to confirm that his application was only in relation to arrears of child support and not the ongoing (lines 36-37). [ 25 ] Additionally the Clerk’s notes from the hearing attached to the Affidavit of D.H. dated November 30, 2010 as Exhibit “B”, indicate that the payment scheme regarding arrears was conditional upon the Applicant paying both ongoing and arrears of child support.

I conclude that Justice Germain did not intend to deal with ongoing child support for A.A., and did not terminate ongoing child support. [ 26 ] If the Applicant’s position is that Justice Germain made the wrong Order based on the facts or on the law, then the Applicant should have appealed the decision, which he did not do.

iii) Why Do the Start Dates of the Annual Statements Not Match for Either File? [ 27 ] The start dates of the annual statements for the files are not relevant. On the A.A. file according to the Debtor Statement of Account the Order was registered with the Maintenance Enforcement Program on April 24, 1995, i.e. the statement start date. The total subrogated arrears registered on April 24, 1995 was $2,600. iv) How Did the Maintenance Enforcement Program Come up with the Amounts for the Various Garnishees? [ 28 ] Pursuant to

Section 17 of the Maintenance Enforcement Act , R.S.A. 2000, c. M-1 the Director can issue a Support Deduction Notice at the request of a debtor or where a debtor has defaulted on payment. Pursuant to

Section 13 of the Maintenance Enforcement Regulation , Alta. Reg. 2/86 the Director may issue a support deduction notice for up to 40% of a debtor’s gross amount of remuneration per month. Therefore the Director was entitled to issue Support Deduction Notices of up to 40% of the Applicant’s remuneration from his employer. [ 29 ] The Support Deduction Notices attached by the Applicant are dated December 15, 2009, June 15, 2010 and June 22, 2010.

At those times the Applicant was obliged to pay the following amounts to ongoing and arrears of child support:– - $500 per month ongoing child support for A.A. (November 4, 1994 Order); - $100 per month towards arrears of child support for A.A. (December 10, 2007 Order); - $519 per month towards ongoing child support for R.D. (December 10, 2007 Order); - $175 per month towards ongoing child support for R.D. (December 10, 2007 Order). [ 30 ] The stay of enforcement granted by Justice Germain was conditional upon timely payments to both the ongoing and arrears of child support.

The Applicant did not stay up to date with the payment scheme. Therefore the Director was entitled to issue Support Deduction Notices in accordance with the legislation.

v) On the Debtor’s Statement of Account Why Is Money Taken Off, but Then Added Back On? [ 31 ] The Applicant has highlighted several transactions in his Debtor Statement of Account where there is a charge reduction, followed immediately by an additional charge on the same day. The Director at times made adjustments to the Creditor Statement of Account because money has been allocated to the Crown when it should have been allocated to the Creditor, or vice versa.

When these adjustments are made, a corresponding transaction is recorded on the Debtor Statement of Account. [ 32 ] An example of this on December 9, 2003 the Director made adjustments to the accounts on the S.A. file because maintenance was being allocated to the Creditor’s account when it should have been allocated to the Crown account. Therefore on December 9, 2003 there is a $500 charge reduction followed by a $500 charge addition on the Debtor Statement of Caaount for the S.A. file. These transactions indicate that the Director was making adjustments to the creditors’ accounts.

Accordingly there is a $500 reduction on the Creditor Statement of Account for S.A. on December 9, 2003, and a $500 charge addition on December 9, 2003 on the Creditor Statement of Account for the Crown. There is no net gain or loss for the Applicant because the adjustments only affected the Creditors.

vi) Compensation for the Endured Hardship, Due to the Loss of His Company, DSH Contracting, and the Loss of His Jobwith DRC Construction. vii) An Investigation into All Persons That Have Been Involved in this Matter. [33] The Applicant has not provided any evidence to suggest that he would be entitled to any compensation for the allegedhardship, or that an investigation into any person involved in his filed would be warranted. viii) Cancellation of All Interest, Penalties and Arrears on the S.A. File. [34] Haisman v. Haisman, 1994 ABCA 249 , [1994] A.J. No. 553 (Alta.

C.A.) deals with the issue of cancelling arrearsat paragraph 27:– 27 In short, in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of child supportso as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse or judgment debtorcan not then pay, and will not at any time in the future be able to pay, the arrears. [35] The Applicant has provided no evidence regarding his past, present or future ability to pay the arrears.

Therefore theApplicant is not entitled to a reduction of arrears. [36] Penalties and interest are regulated amounts that are not within the jurisdiction of the Court. Therefore the Court is not able tocancel penalties or interest. Disposition [37] There is no evidentiary basis for the relief requested by the Applicant. Accordingly the application is dismissed. Heard on the 11th day of February, 2011. Dated at the City of Edmonton, Alberta this 18th day of March, 2011. Donald Lee J.C.Q.B.A. Appearances:

The Applicant D.H. Appeared on His Own Behalf The Respondent S.A. Did Not Appear Cory Miller Alberta Justice Social Enhancement Legal Team for the Third Party