Lavoie v. Lavoie (Lillos), 2011 ABQB 781

Court of Queen ’ s Bench of Alberta Citation: Lavoie v. Lavoie (Lillos), 2011 ABQB 781 Date: 20111213 Docket: 4801 144123 Registry: Calgary Between: Gregory Charles Lavoie Plaintiff - and - Cherrie Dione Lavoie also known as Cherrie Dione Lillos Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R. J. Hall _______________________________________________________ [ 1 ] By Order of this Court the father (Applicant) has primary care of the four children of the marriage. He seeks s. 3 interim child support, based on the mother’s (Respondent’

s) admitted income of $29,000.00 per year, which amounts to $700.00 per month on the Child Support Guidelines. Both parties are represented by counsel. [ 2 ] The Respondent maintains that she would be entitled to spousal support, but acknowledges that she has not brought an application on notice for spousal support. She asks that the child support application be adjourned pending determination of her claim to spousal support.

[ 3 ] The Respondent further maintains that payment of $700.00 per month by her would amount to Undue Hardship, and she asks for relief. She has deposed in her affidavit that her standard of living would be substantially less than the Applicant’s, and she provided a table showing such a calculation. Her affidavit does not detail the alleged Undue Hardship. However, she notes that in previous affidavits she has deposed to Undue Hardship, taking loans from her mother to make ends meet. [ 4 ] The Applicant says, that the Respondent: (

a) must bring a Notice of Motion seeking relief for Undue Hardship; and (

b) cannot refer to earlier affidavits in the within motion, because of Family Law Practice Note #2 which says in paragraph 4: . . . If a party wishes to rely upon evidence contained in a previously filed affidavit or Statement, such evidence must be repeated in the Affidavit or Statement filed for the Application. [ 5 ] Dealing with Applicant’s position (

a) above, I agree. In order for the Applicant to respond to such an allegation of Undue Hardship, there should have been an application on Notice, to which the Applicant could have responded. S. 10 of the Federal Child Support Guidelines says a Court may order a different amount of child support on “either spouse’s application”. No such application is before me. See Stephenson v. Racine 2009 ABCA 233 . [ 6 ] Dealing with Applicant’s position (

b) above, I also agree. In order for the applications to proceed in an orderly fashion, the Practice Note is to be followed. In order to obtain relief for Undue Hardship the party seeking relief must show not only an imbalance in Standards of Living, but also that he/she suffers Undue Hardship. [ 7 ] I am not prepared to adjourn this Application.

The Applicant father is entitled to interim child support of $700.00 per month which shall commence January 1, 2012. [ 8 ] The Respondent may bring applications, on Notice, seeking interim spousal support and seeking relief from payment of full child support based upon Undue Hardship, should she decide to do so. [ 9 ] The Applicant shall be entitled to costs of this Application in the amount of $750.00 Heard on the 1st day of December, 2011. Dated at the City of Calgary, Alberta this 13th day of December, 2011. R. J. Hall J.C.Q.B.A.

Appearances: Peter G. Wells of Foster McGurk Vanin LLP for the Plaintiff/Applicant Lesley Cooney-Burk Professional Corporation for the Defendant/Respondent