Brown v. Brown, 2012 ABQB 214

Court of Queen ’ s Bench of Alberta Citation: Brown v. Brown, 2012 ABQB 214 Date: 20120330 Docket: 4803 130856 Registry: Edmonton Between: Dianne Joan Brown Plaintiff - and - Stephen Lloyd Brown Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Introduction [ 1 ] This matter came before me on March 9, 2012 as Ms. Brown's application to set aside the order of Ross J. obtained by Mr.

Brown on February 7, 2012 giving him leave to make an application to vary the existing order regarding spousal support. [ 2 ] Ms. Brown objected to the order on the basis that notice of the application had not been properly served on her. She had not attended the application before Ross J.

Background [ 3 ] This matter has a lengthy background before the courts. It would appear that the only issue remaining between these long-separated and long-divorced litigants is spousal support. [ 4 ] The current order regarding spousal support is the comprehensive, 8 page order of Trussler J. dated October 10, 2006. Para. 11(

j) of that order provides: (

j) The Husband shall pay spousal support to his Wife as follows: (

i) For the year of 2005, the amount of $2,300.00 per month shall be payable to the Wife in installments of $1,150.00 on the 1 st and 15 th of each month. (ii) For the years 2006 and 2007, the amount of $2,600.00 per month shall be payable to the Wife, in installments of $1,300.00 on the 1 st and 15 th of each month. (iii) For the years 2008 to 2010, the amount of $2,700.00 per month shall be payable to the Wife, in installments of $1,350.00 on the 1 st and 15 th of each month. (iv) If, in January 2011, the Wife has not completed her education degree, the amount of $2,800.00 per month shall be payable to the Wife, in installments on the 1 st and the 15 th of each month, until such time as the Wife has completed her education. (

v) If, in January 2011, the Wife has completed her education degree and is employed, spousal support shall be in the amount of $1,750.00 per month, plus any change upward in cost of living as established by the Consumer Price Index published by Statistics Canada, payable to the Wife, in installments on the 1 st and the 15 th of each month, until such time as the Husband retires. (vi) If, thereafter, the Wife has completed her education degree and is not employed, spousal support shall be in the amount of $2,800.00 per month shall be payable to the Wife, in installments on the 1 st and 15 th of each month. (vii) The parties may apply for a review of spousal support in the event that a substantial change of circumstances on the part of either party occurs. [ 5 ] Para. 11 is verbatim the provisions for spousal support in para. 13 of the parties' Settlement Agreement dated September 9, 2005. [ 6 ] The

preambles to the parties' Settlement Agreement include "And whereas the Wife is enrolled in post-secondary education and has documented medical conditions" and that "it is the intent of the Husband and Wife that the Wife will be supported with a reasonable standard of living." [ 7 ] Para. 10 of the order states:

The parties shall not make any further applications to the Court in this matter, with the exception of applications for enforcement of this order, or by application of counsel for the child. [ 8 ] The matter was case managed by Trussler J. and then by Ross J. following Trussler J.'s retirement. Sometime after Ross J.’s appointment, the matter was taken out of case management. She was no longer case management judge in 2010. [ 9 ] On July 2, 2010, Ms. Brown wrote Read J. seeking to have the matter put back in case management.

Read J. was then chair of Edmonton's family law committee and responsible for assigning case management in family matters. She wrote to the parties on September 9, 2010 as follows: The file indicates that Minutes of Settlement were signed in September of 2005. The file further indicates that both Justice Trussler and Justice Ross had case managed this matter. Justice Trussler directed that there be no further court applications in respect to matrimonial property.

Custody and access have been dealt with and, in any event, once Daniel is 18 he will be an adult and no further custody or access applications will be entertained by this Court. There seems no reason to put this matter back into case management and, indeed, no reason for either party to make any further applications to this Court. Your request for case management is refused. [ 10 ] A number of applications were made by the parties starting in July, 2010. It is unnecessary to describe in any detail the various applications made by the parties between July and December, 2010.

Hawco J.'s order of July 5, 2010 stated that Mr. Brown's obligations to Ms. Brown "shall continue". A family law special hearing was scheduled for January, 2011 to address various claims by Ms. Brown relating to compensation and by Mr. Brown to remove or vary a restraining order against him, review spousal support and other things. [ 11 ] It was clear from the affidavit evidence submitted over the fall of 2010 that Ms. Brown had not completed her planned education. Mr.

Brown had remarried and moved to Victoria, and the children were adult so there were no ongoing custody and access issues. [ 12 ] The parties appeared before Lutz J. on December 16, 2010 to address Ms. Brown's application for an adjournment of the January, 2011 special, amongst other things. [ 13 ] Lutz J. dismissed both parties' applications against each other. He held that there should be no review date for the October 10, 2006 order. He confirmed existing restraining orders against both parties.

He also stated that "Neither party is entitled to bring any further applications before the Court without leave." [ 14 ] The issues before Lutz J. included the previous history of applications between the parties, issues of marital violence between the parties, allegations that Mr. Brown had deliberately injured Ms. Brown, non-compliance with orders, Mr. Brown's move to Victoria, and has application to vary spousal support. [ 15 ] No appeal was taken from Lutz J.'s order. [ 16 ] Mr. Brown applied in February, 2012 for leave to apply to review his spousal support obligations.

His notice of application was filed January 27, 2012 and his application for leave was supported by a brief affidavit sworn on January 27, 2010. [ 17 ] Coincidentally, his application was heard by Ross J., who had previously case managed the matter. Her order was granted in the absence of Ms. Brown.

[ 18 ] Ms. Brown claims that she did not receive notice of the application. While the application was served on her residence by registered mail in accordance with previous orders relating to service of process, she swore in her affidavit of February 23, 2012 that Mr. Brown knew she was away and took advantage of her absence. [ 19 ] She opposes the granting of leave to review the October 10, 2006 order as it relates to spousal support, and seeks a moratorium on applications by Mr. Brown to reduce or vary support. [ 20 ] On March 2, 2012, Ms.

Brown filed an application seeking to set aside the February 7 order, and for "Immediate Remuneration of Arrears, Continue to Pay, and That no further applications by Mr. Brown to return to court on this matter be allowed, as per the Court Ordered Divorce Judgement; a Cease & Desist." [ 21 ] Ross J. granted a fiat to allow Ms. Brown to apply to set aside the February 7 order, but refused to grant a fiat with respect to the other relief sought by Ms. Brown. [ 22 ] It is clear that Trussler J.'s and Lutz J.'s prohibition against making applications without leave of the court applies to both Mr. Brown and Ms.

Brown. [ 23 ] Mr. Brown's application was based on the fact that Ms. Brown has not yet completed her program of study as contemplated in their Settlement Agreement and in the October 10, 2006 order, and that the program she was enrolled in is not an “education” degree, but rather is a nursing degree program. His January 23, 2012 affidavit also references that he is having difficulties with "Revenue Canada" and the BC Family Maintenance Enforcement Program, regarding the amount of spousal support to be paid. [ 24 ] Ms.

Brown opposes the application on the basis that the nature of the program she is in is irrelevant, and her inability to complete the program is the result of continued harassment by Mr. Brown which has interfered with her studies, and serious health issues. [ 25 ] Ms. Brown is now registered in a nursing program at MacEwan University. She has submitted a letter from a professor at the Faculty of Nursing at the University of Alberta, regarding the effect previous court proceedings have had on Ms. Brown's studies, including her being unable to carry on at the University of Alberta.

Analysis [ 26 ] The issue for me to determine is whether Ross J.'s order should be vacated or varied. [ 27 ] The Court clearly has jurisdiction to revisit an order granted in the absence of the other party. Rule 9.15 states: 9.15(1) On application, the Court may set aside, vary or discharge a judgment or an order, whether final or interlocutory, that was made (

a) without notice to one or more parties, or (

b) following a trial or hearing at which a party did not appear because of an accident or mistake or because of insufficient notice of the trial or hearing.

(2) Unless the Court otherwise orders, the application must be made within 20 days after the earlier of

(

a) the service of the judgment or order on the applicant, and (

b) the date the judgment or order first came to the applicant’s attention.

(3) The Court may set aside, vary or discharge a judgment in default of defence on any terms the Court considers just.

(4) The Court may set aside, vary or discharge an interlocutory order (

a) because information arose or was discovered after the order was made, (

b) with the agreement of every party, or (

c) on other grounds that the Court considers just. [ 28 ] I am satisfied that Rule 9.15(1)(

b) applies in that Ms. Brown did not have sufficient notice of the application before Ross J. despite having been served with the application by registered mail in accordance para. 7 of Greckol J.'s order of September 13, 2010. That order provides: Dianne Joan Brown and Stephen Lloyd Brown shall be entitled to serve the other party with any documents related to court proceedings by registered mail at their residences in Edmonton, Alberta.

Should Stephen Lloyd Brown move to British Columbia, service upon him shall be effected at his address in British Columbia by registered mail. [ 29 ] It is clear from the history of this matter that had Ms. Brown been aware of the application, she would have attended and opposed it. [ 30 ] Thus, I consider that I have the necessary jurisdiction to consider the application in light of Ms. Brown's submissions, evidence and concerns. [ 31 ] Her substantive concerns can be summarized as fivefold: 1.

The application is part of a program of harassment directed at her with a view to interrupting or frustrating her education; 2. The issue of what program of study she is required to be in has already been determined; 3. She is still full time at university; 4. Her studies have been negatively impacted by her health and by Mr. Brown's applications in this matter which have distracted her from her education; and 5.

Any further court applications will further distract her from her studies and interrupt her education. [ 32 ] The Supreme Court has recently reviewed the law on variation of spousal support obligations in L.M.P. v. L.S. , 2011 SCC 64 and R.P. v. R.C. , 2011 SCC 65 in the context of s. 17(4.1) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). That

section provides:

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

[ 33 ] Trussler J.'s order of October 10, 2006 expressly states in para. 11(k)(vii) that "The parties may apply for a review of spousal support in the event that a substantial change of circumstances on the part of either party occurs." [ 34 ] In his application before Ross J., Mr. Brown raised no changes in his own circumstances as a basis on which to review the existing order. He relies on the fact that Ms. Brown has not yet completed the program of study that was contemplated by the parties' agreement and the October 10, 2006 order.

His materials make no reference to the proceedings brought in the fall of 2010 and the nature of those proceedings is not clear from the face of the order taken out after the application before Lutz J. on December 16, 2010. [ 35 ] Both the parties' agreement and the October 10, 2006 order contemplate that Ms. Brown may be finished her "education degree" by January, 2011, although the order is specific that if she has not completed the degree, support of $2,800.00 per month shall be payable until she "completes her education".

If she has completed the degree and is employed, support of $1,750.00 is payable until Mr. Brown retires. If she has completed the degree and is not employed, support of $2,800.00 continues. [ 36 ] This is not an initial application under the Divorce Act , to which Miglin v. Miglin , 2003 SCC 24 applies. Instead, this is an intended application to vary an existing court order, whether it be Trussler J.'s order of October 10, 2006 or Lutz J.'s order of December 16, 2010. Mr.

Brown's application in the fall of 2010 sought a "review of the Agreement of Settlement of September 2005 as the Respondent has not complied with the terms of the agreement." Lutz J. dismissed his application. [ 37 ] At para. 25 of the majority decision in R.P. , Abella J. and Rothstein J. stated: Under s. 17(4.1) of the Divorce Act , the moving party must establish that there has been a material change of circumstances since the making of the prior order or variation. The applicable framework for this case is the one elaborated in the companion decision, L.M.P.

To be material, a change must be one which, if known at the time, would likely have resulted in different terms to the existing order. On an application to vary, the court should consider the terms of the order and the circumstances of the parties at the time the order was made to determine whether a particular change is material. The existing order is deemed to have been correct and only if the requirements of s. 17 of the Divorce Act are met will there be a variation. [ 38 ] Therefore, to succeed in his application to vary the spousal support provisions, Mr.

Brown needs to establish that his circumstances have changed "substantially" to the worse (using the wording of the October 10, 2006 order) from the time of Lutz J.'s order in December, 2010, or that Ms. Brown's circumstances have changed "substantially" since Lutz J.'s order warranting a revision to the support provisions. [ 39 ] The Divorce Act and the relevant cases refer to "material change in circumstances" as being the threshold for review. I do not see a difference between "substantial" and "material". For the purpose of this application, I will treat the terms as being the same.

What has arguably changed since December, 2010? [ 40 ] Ms. Brown has left the University of Alberta, and is now enrolled in a nursing program at MacEwan University. It is unclear whether she is now closer to completing her education than she was in December, 2010, because she has started in a new program. Her health remains poor, and is arguably worse. [ 41 ] The application before me is not to determine whether there has been a material or substantial change in either of the parties' circumstances; it is whether or not the court should allow Mr.

Brown to bring an application to review the existing spousal support order. [ 42 ] Under the logic of L.M.P. and R.P. , Lutz J.'s dismissal of the application in December, 2010 is deemed to be correct, and the effect of his order must be taken to be that Mr. Brown had not proven that there had been any material or substantial change in the parties' circumstances between October 10, 2006 and December 16, 2010.

Application for Leave [ 43 ] Lutz J. obviously considered it necessary to repeat Trussler J.'s requirement that the parties seek leave before bringing any applications to vary. That sort of provision is obviously intended to act as a barrier to further applications. It is used when the courts are concerned that the parties, or one of them, will make unnecessary or frivolous or vexatious applications.

The purpose for requiring leave is to screen the prospective application, and require a judge to act as gatekeeper to the courts. [ 44 ] I see no reason to treat a leave application for permission to bring a substantive application any different from an application for leave to appeal under the Rules of Court. Many appeals are be made as a matter of right. Some appeals, however, require a screening process.

The same can be said of matters where a trial or chambers judge has put fetters on the parties' usual right to make whatever applications they consider necessary or appropriate, as is the case here where prior leave of the court is a requirement. [ 45 ] One of the main criteria for leave to appeal (where it is required) to the Court of Appeal is that there must be a reasonably arguable case. Cases which are destined to fail will not be allowed to proceed. See for example Bank of Montreal v. Browning Smith Inc. , 1998 ABCA 256 . [ 46 ] Mr.

Brown's affidavit in support of his leave application seeks "clarification" of what spousal support should be, based on his statement that "the Defendant has not started an Education degree and has not been seeking employment". This was essentially the same situation as was the case in December, 2010 when Lutz J. dismissed Mr. Brown's application for a review in January, 2011. [ 47 ] Frankly, there is nothing unclear about the existing orders. Ms. Brown has not completed her degree; she is still enrolled at university pursuing a nursing degree. She is not working. Thus Mr.

Brown is obliged to pay $2,800.00 per month unless he can get the amount varied on application. [ 48 ] The other circumstance for a reduction - graduated and working - has clearly not occurred, and does not require any "clarification" from the court. [ 49 ] All that is left is whether Mr. Brown should be able to pursue a review of the spousal support based on Ms. Brown's current educational and occupational status. Change in Circumstances [ 50 ] Is it reasonably arguable that Ms.

Brown's failure to complete her "education degree" by December, 2011, is a material change in circumstances which might warrant a reduction to spousal support? [ 51 ] The October 10, 2006 order contemplates that spousal support will continue past January, 2011 if Ms. Brown has not completed her "education degree". The order does not discuss any circumstances as to why Ms. Brown may not have completed her degree. The order appears clear: she either has a degree, or she doesn't. [ 52 ] If she has completed her degree and gets a job, spousal support continues until Mr. Brown's retirement at $1,750.00 per month.

If she has completed her degree and does not get a job, spousal support continues indefinitely at $2,800.00 per month. [ 53 ] She has clearly not completed any degree. The parties' agreement and the previous orders give no assistance to what is required of Ms. Brown in pursuing an "education degree". It is contemplated by the agreement that it may take her at least 5 years to do so (simply having regard to the date of the agreement and the specified January, 2011 date).

[ 54 ] The Settlement Agreement recites that the parties separated in 2003. An affidavit of Ms. Brown, sworn March 14, 2012 in support of her application, indicates that she attended Norquest College in 2005 and 2006 and obtained her Licensed Practical Nurse diploma. In 2007 she was accepted to MacEwan University's nursing program. She was then at the University of Alberta in 2010 and 2011, but she is now back at MacEwan University, having had difficulties at the University of Alberta. [ 55 ] The materials do not indicate when Ms. Brown may complete her program of study.

It is unclear what she has completed to date, what credit she may be given for what she has already taken, and what is left for her to do. [ 56 ] The existing order contemplates that Mr. Brown will support Ms. Brown to the extent of at least $1,750.00 per month, until his retirement. Barring a material change in his circumstances, and on the face of the existing orders, he is only entitled to a reduction from the current $2,800.00 per month to $1,750.00 if Ms. Brown has graduated and has a job.

If she has not graduated, or having graduated, has no job, support at $2,800.00 continues, presumably until there has been a material change in either of the parties' circumstances. [ 57 ] It is, in my view, a reasonable conclusion that the Settlement Agreement and October 10, 2006 order contemplate that Ms. Brown would likely be pursuing post-secondary education until at least January, 2011. It is also clear that Ms. Brown was never pursuing an "education" degree; her programs of study have always been in the nursing field. Mr. Brown's argument that Ms.

Brown is not entitled to full support because she is not obtaining an "education degree" has no merit. It is bound to fail and is hopeless. [ 58 ] To be successful, therefore, Mr. Brown would have to establish that Ms. Brown has not taken reasonable steps between January, 2011 to graduate by March, 2012, or to work. There are also some circumstances that are not dealt with in the order of October 10, 2006 as confirmed by Hawco J. and Lutz J., such as: 1. What if Ms. Brown quits school and never gets a degree?

The order does not contemplate situations where she is either not going to school, or not getting her degree. 2. What if Ms. Brown stays at school indefinitely and never puts herself in a position to obtain employment? 3. What if Ms. Brown graduates, and makes no effort to obtain employment? [ 59 ] I cannot think that the parties intended when thee made their agreement in 2005 and had it included in Trussler J.'s October 10, 2006 order, that Ms. Brown would stay at school indefinitely. The objective was undoubtedly to encourage some level of self-sufficiency, recognizing that regardless of Ms.

Brown's efforts and successes at education and self-sufficiency, support of at least $1,750.00 would continue until Mr. Brown's retirement. [ 60 ] Ms. Brown has not argued any change in her circumstances, other than Mr. Brown's actions which she characterizes as harassing, and her health issues as being the impediments to her success to date. She professes a keen interest in pursuing her nursing degree. She has consistently provided letters of recommendation and support from both the University of Alberta and MacEwan University. [ 61 ] Nevertheless, it is not unreasonable for Mr.

Brown to want to know when, if ever, Ms. Brown might be in a position to graduate and seek employment. If it is impractical for Ms. Brown to graduate in the foreseeable future, maybe there should be some consideration of her working instead of going to school. Not graduating in a reasonable period of time from the Settlement Agreement or original order would appear to be a change in the parties’ expectations, if not a change in circumstances. Conclusion

[ 62 ] I do not see that Mr. Brown has yet met the burden on him to meet a threshold test of showing a material change in circumstances. Part of this is because he does not have information available to him (and to provide to the Court) as to whether Ms. Brown's failure to graduate and find work are within her reasonable control or not.

That would normally come through the exchange of affidavits and cross-examination on a review application. [ 63 ] With respect to support and corollary relief, orders now include mandatory exchanges of information, so each party can, without having to bring an application, gain knowledge of whether the other party's financial circumstances (at least as they relate to incomes) have changed.

The mandatory exchange of financial information by June 30 each year assists the parties in keeping their obligations up to date, without necessarily requiring a lot of documentation and a court application. [ 64 ] In this case, I am satisfied that Mr. Brown is entitled to information from Ms. Brown. That information includes details as to her program, where she is in the program, and when she will graduate in the ordinary course of the program. [ 65 ] That information may (or may not) suggest that there has been a material change in her circumstances.

It will at a minimum reset a date (like January 2011) by which time Ms. Brown might be graduated and working. [ 66 ] With children who are continuing on with their education after reaching age 18, parents are entitled to information as to what the child is doing, how the child is doing, and what the child is doing to contribute to the cost of his or her education. The support obligation is not an unending, unconditional one. [ 67 ] Where spousal support has been tied to education, similar information should also generally be made available to the payor.

That will enable the payor to know whether circumstances are such that payment should continue, or whether there should be modifications to the regime. [ 68 ] I am not suggesting that Ms. Brown should provide details as to her specific courses, or grades. That level of detail is unnecessary.

But something from her program head or other university official certifying her enrollment, what she is enrolled in, the extent to which it is full time or part time, how far along she is in the program, what the end result of the program will be, and when she is expected to complete the program, should provide a level of information and certainty on which to base a future application for leave to apply for a review of the spousal support. [ 69 ] If indeed Mr. Brown requires something further for Canada Revenue Agency purposes, or BC MEP purposes, he should specify exactly what he needs.

His affidavit suggests that seeking "clarification" from the Court is necessary. He needs to be much more explicit as to what these agencies need and why, and that he has been unable to get the information from other sources, before seeking leave to bring an application for that. Orders 1. Ross J.'s order of February 7, 2012 is stayed until further order of the court; 2. The parties remain obliged to provide the other with financial disclosure in accordance with para. 12 of Trussler J.'s order of October 10, 2006; 3. Ms.

Brown shall provide information as described above, namely certification of her continued enrollment, confirmation as to the program she is enrolled in, information as to the extent to which the program is full time or part time, how far along she is in the program, what the end result of the program will be, and when she is expected to complete the program, by June 15, 2012; 4. On receipt of the information referred to in para. 3 above, or on Ms. Brown’s failure to provide the information specified in para.

3 hereof by June 15, 2012, Mr. Brown may reapply to Graesser J. for leave to carry on with a review application; 5. Neither party shall make any further applications of any kind to the Court (including Masters in Chambers) prior to Ms. Brown providing the information in para. 3 hereof, or June 15, 2012, whichever occurs first; 6. Communications between the parties shall be in accordance with Greckol J.'s order of September, 2010, namely registered mail. Personal service is unnecessary. Any avoidance of acceptance of registered mail would be contrary to the spirit of Greckol J.'s order and my confirmation of it.

If a party is away, it is up to the party to ensure that his or her mail is being monitored. Heard on the 09 th day of March, 2012. Dated at the City of Edmonton, Alberta this 30 th day of March, 2012. R.A. Graesser J.C.Q.B.A. Appearances: Dianne J. Brown Appeared on her own behalf for the Plaintiff Stephen L. Brown Appeared on his own behalf for the Defendant