BD v DSN, 2012 ABQB 251

Court of Queen ’ s Bench of Alberta Citation: BD v DSN, 2012 ABQB 251 Date: 20120416 Docket: 4803 157309 Registry: Edmonton Between: BD Applicant - and - DSN Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Applicant wife seeks sole custody of the one child of the marriage who is presently 6 ½ years of age.

The wife also seeks to deny any access to the husband since she was forced to flee with the child due to domestic violence while the parties lived together. The wife alleges that the husband was verbally, emotionally and physically abusive to her and to the child, who witnessed numerous altercations between them. The wife alleges that she was not permitted to attend any doctor ’ s or other appointments alone, without either the husband or one of his parents being present, to ensure that she did not reveal any information about the domestic violence that was occurring.

The wife alleges that the husband would constantly threaten her life, and the life of the child, and that even the husband ’ s parents were “ permitted ” by the husband to physically and verbally assault her, which they often did.

[ 2 ] Eventually the wife fled with the child for fear for her life and safety, as well as that of the child. On March 14, 2011 she obtained an Emergency Protection Order against her husband from having any contact with her and the child. On March 22, 2011 that Emergency Protection Order was confirmed, and the husband was subsequently also charged criminally with assault against the wife. [ 3 ] The assault trial commenced on September 1, 2011 and was adjourned to January 12, 2012 for completion.

At that time the Court found the husband guilty, and the husband is now appealing his conviction for assault. [ 4 ] At the trial, the husband took the stand and testified that it was the wife who started the assault by pulling his hair. While the husband struggled to free his hair from his wife ’ s grasp, he accidentally caused her to fall on a heater, which resulted in scratches and bruises. The husband alleges that in the wife ’ s statement to police, she described the poking of her eye as inadvertent, and notes that the wife did not call the police, but rather went to work that evening.

The police were only contacted later when the wife, at the suggestion of a Canadian lady who had become a friend, decided to move out of the house the next morning after she finished work. While the wife tried to move out of the former matrimonial home, she and her friend were confronted by the landlady upstairs, who went downstairs initially suspecting that there was a theft going on.

The landlady began to converse with the wife in Punjabi, at which point the wife ’ s friend, not understanding the conversation in the Punjabi language, concluded that the landlady was trying to stop the wife from moving out, when in fact she was only trying to help the wife and her husband reconcile. The wife ’ s friend then called police, but the wife still did not give a statement to police and the police left.

It was only later at the insistence of the wife ’ s friend, who apparently is herself divorced and has been a victim of domestic violence by her husband, that the wife went to police and made a complaint with respect to the alleged assault. [ 5 ] The husband had immigrated to Canada with his parents, and at the end of 2003 he went to India and married the Applicant. Upon returning to Canada, he sponsored the Applicant as a spouse, and the Applicant arrived in Canada in October 2004.

Within a month of her arrival, she became pregnant and on August 31, 2005 gave birth to the one child of the marriage. [ 6 ] Soon after the child ’ s birth, the Applicant decided to go to work, but the husband refused to allow this because he wanted the wife to look after the child. Despite these objections however, the Applicant started working on a part-time basis three days a week or more at the Canadian Superstore, and the child was looked after by the husband ’ s parents. Eventually the Applicant according to the husband started working up to 35 hours a week, and she neglected the child as well as him.

The Applicant then started fighting with the husband ’ s parents and was verbally abusive towards them according to the husband, so much so that as a consequence the husband ’ s parents left for India. When the husband ’ s parents returned, the Applicant obtained a second job at Seven-Eleven working the night shift from 10:00 p.m. to 6:00 a.m. with the result that the Applicant was absent from the home five nights a week and the child was exclusively raised by the husband ’ s parents during the week, and by the husband himself on the weekend.

The husband ’ s parents wanted to return back to India to attend to their own personal affairs, and out of necessity they had to take the child with them to India allegedly with the consent of the Applicant. The Applicant however alleges that she was controlled and abused by these parents generally. [ 7 ] The husband alleges that the real reason for the problems between he and his wife is that the husband has refused to sponsor the wife ’ s family to come to Canada because of the difficulties he was having with his wife, and because he could not meet the income requirements for such sponsorship.

The husband however indicates that he did finally sponsor the wife ’ s parents to come to Canada, although that application was subsequently withdrawn by the husband. This was because the wife maintained separate bank accounts and refused to contribute to the household expenses, preferring to send her money, as well as part of the husband ’ s earnings to her parents. Before the withdrawal of the sponsorship, the husband had jointly invested in two houses, one of which netted a profit when sold and the Applicant received her share of those profits.

The other house that was sold resulted in a loss. [ 8 ] After the investment loss on one of the houses, and the withdrawal of the sponsorship, these parties separated for a period of time. To save the marriage, and to secure the future for his child, the husband agreed to move away from his parents, and the parties reconciled temporarily until the alleged assault occurred.

The husband alleges that the wife actually refused to take the child with her when she decided to move out and separate, and that it was he that obligingly took the child to the Applicant ’ s new residence, at which point she declared that she would keep the child and demanded that the husband leave. The husband claims that the child was clinging to his legs and crying, stating that he did not want to stay with the Applicant.

When police were called on this incident, they decided that it was in the best interests of the child that the child return with the husband, and the child did remain with the husband for the next four months during which the Applicant never visited the child once according to the husband, although he on his own initiative took the child to visit the wife as often as he could. [ 9 ] The husband also alleges that the Applicant suffers from depression, which while it manifested itself soon after her arrival in

Canada, had actually begun long before the marriage, and had not been revealed to the husband before or after the marriage. Conclusion [ 10 ] The following omnibus issues have been raised by the Applicant wife: – (

a) Should the Applicant be granted sole custody? (

b) Should the Respondent be denied access to the child? (

c) Should the Respondent pay to the Applicant retroactive child support of $4,851 from April 2001 to October 2011 based upon monthly child support payments of $693 per month? (

d) Should the Respondent pay to the Applicant ongoing child support of $677.74 per month, commencing January 1, 2012 in accordance with the Federal Child Support Guidelines ? (

e) Should the Respondent pay to the Applicant retroactive

Section 7 daycare expenses of $998 from April 2011 to December 2011 based upon the Respondent ’ s proportionate share of 72.01% of the said monthly daycare expense? (

f) Should the Respondent pay to the Applicant ongoing

Section daycare expenses of $110.90 per month, being his proportionate share of 72.01% of daycare expenses commencing January 1, 2012 in accordance with the Federal Child Support Guidelines ? (

g) Should the Respondent be ordered to return personal property specifically outlined in Exhibit “ E ” of the Applicant ’ s Affidavit, sworn January 27, 2012? (

h) Should the Respondent pay to the Applicant retroactive spousal support of $1,800.00 calculated from April 2011 to December 2011? (

i) Should the Respondent pay to the Applicant ongoing spousal support of $200 per month commencing January 1, 2012? Should the Applicant be granted sole custody, and should the husband be denied access to the child? [ 11 ] Given that this case has a plethora of conflicting and serious allegations that I have only actually touched upon in these written Reasons, there is no question of any joint custody given the parties ’ animosity to each other which has been clearly demonstrated throughout this application and the materials filed.

The allegations about the wife ’ s mental instability and unfitness are unsubstantiated at this point. I conclude that the Applicant wife should be given on an interim basis primary care and control of the child, particularly since the child has been in her primary care and control since the parties separated in March 2011.

Although the husband has made various allegations as to what may have occurred immediately thereafter, as well as has submitted that he was the primary caregiver during the course of the marriage, these are also at this time unproven. [ 12 ] As for the husband ’ s access to the child, the Emergency Protection Order that was issued in Provincial Court in March 2011,

[ 12 ] As for the husband ’ s access to the child, the Emergency Protection Order that was issued in Provincial Court in March 2011, and later confirmed in this Court for a period of one year prevented should have however the husband from having any contact with the wife or with his son for over a year. However the husband deposes that during the currency of Emergency Protection Order, the Applicant wife on various occasions called between four to six times a day urging him to come and see her.

The husband went so far as to depose that he eventually relented to seeing his wife because he missed his son so much, and that they met at a mutual friend ’ s house on several occasions, and in fact even shared a bed together. The husband also deposes that he has taken her and the son to Saskatoon and Banff and stayed there for two days on each visit.

The husband further deposes that when the Applicant travelled to India with their son in November 2011, with his consent, the Applicant requested his credit card which she used for personal shopping and gifts for her family, spending a total of approximately $5,000. On another occasion during the mutual visit at the friend ’ s house, he deposes that he gave the Applicant $5,000 cash at her request.

All of these matters also consist of unproven allegations and representations. [ 13 ] The Emergency Protection Order has now expired as of March 2012 but the husband has been found guilty of a serious domestic violence charge in the Provincial Court, which verdict is under appeal. While the Applicant seeks to have all access denied to the husband, I have concluded that on a interim basis supervised access can be granted to the husband. The child has never been directly harmed by the husband to date, and he does not seem to pose any type of immediate threat to the child.

There will be no overnight stays as requested by the husband however, and an independent third party supervisor must be hired by the husband for his one day every weekend visits which will begin from 10:00 a.m. and conclude at 6:00 p.m. each Saturday commencing Saturday, May 5, 2012.

Should the Respondent pay to the Applicant retroactive child support of $4,851 from April 2001 to October 2011 based upon monthly child support payments of $693 per month? [ 14 ] Although this portion of the application with respect to retroactive and ongoing child support is generally opposed by the husband on the basis that his 2011 income is not as previously found to be $78,860, but has rather fallen dramatically to $37,000, I conclude that retroactive child support of $4,851 at the rate of $693 per month from April 2011 after the parties separated in March 2011, to October 2011 is in order.

According to the Applicant the Respondent refused to provide her with any financial assistance when they separated, and it was only until an application was filed for child support that the Respondent then agreed to pay child support but only for the months of November and December 2011.

Given the conflicting Affidavit material before me, and given the Consent Order in which counsel for the Respondent agreed on November 16, 2011 that his client ’ s Guideline income was $78,860, I see no reason why the Respondent should not pay the Applicant retroactive child support from April 2011 based on the monthly amount of $693 per month.

Should the Respondent pay to the Applicant ongoing child support of $677.74 per month, commencing January 1, 2012 in accordance with the Federal Child Support Guidelines ? [ 15 ] The Respondent has not paid any child support to date other than for November and December 2011. These child support payments must be ongoing for the child who is currently only 6 ½ years of age. The Respondent has just provided his current 2011 T1 General Income Tax Return which shows for some inexplicable reason that his income has dropped from $78,860 at Line 150 of his 2010 Notice of Assessment, to only $37,000 currently.

Given that there is no reasonable explanation being offered for this major drop in income, nor any objectively verifiable proof of current income, the Respondent will continue to pay the sum of $677.74 for ongoing child support in accordance with the Federal Child Support Guidelines commencing January 1, 2012, until further order of this Court on an interim basis. Should the Respondent pay to the Applicant retroactive

Section 7 daycare expenses of $998 from April 2011 to December 2011 based upon the Respondent ’ s proportionate share of 72.01% of the said monthly daycare expense? [ 16 ] The Respondent should also pay the Applicant the sum of $998 for retroactive

Section 7 daycare expenses for the period between April to December 2011 based on his proportionate 72.01% share of this monthly expense. It is not in dispute that the child has been in daycare, to enable the Applicant to work and earn an income to try to support herself and the child, which she has had to do because the Respondent has refused to pay anything other than two months child support for November and December 2011. The Applicant currently pays the undisputed sum of $154 per month for child care after the deduction of her subsidy, and she has produced receipts confirming her payments.

Her Guideline income is $30,656 according to the Federal Child Support Guidelines calculations, and I have already determined that the Respondent ’ s annual Guideline income is $78,860.

Should the Respondent pay to the Applicant ongoing

Section daycare expenses of $110.90 per month, being his proportionate share of 72.01% of daycare expenses commencing January 1, 2012 in accordance with the Federal Child Support Guidelines ? [ 17 ] I conclude that the Respondent will pay the Applicant the sum of $110.90 per month for ongoing

Section 7 child care expenses being his proportionate share in accordance with the Federal Child Support Guidelines commencing January 1, 2012. So long as the child is in daycare, the Respondent will have to contribute to such expenses in accordance with his proportionate share of that expense, being $110.90 per month currently.

Should the Respondent be ordered to return personal property specifically outlined in Exhibit “ E ” of the Applicant ’ s Affidavit, sworn January 27, 2012? [ 18 ] The issue of the return of the personal property outlined in Exhibit “ E ” of the Applicant ’ s Affidavit sworn January 27, 2012 is more problematic.

The alleged missing property of the Applicant consists of the following: – 4 Gold Necklaces (3 are in Plaintiff ’ s Mother ’ s possession and are to be returned to the Defendant) 2 Gold Bracelets (both are in the Plaintiff ’ s Mother ’ s possession and are to be returned to the Defendant) 8 Bangles (6 are in the Plaintiff ’ s Mother ’ s possession and are to be returned to the Defendant) 11 Gold Rings (All are in the Plaintiff ’ s Mother ’ s possession and are to be returned to the Defendant) 2 Gold Neck Chains (All are in the Plaintiff ’ s Mother ’ s possession and are to be returned to the Defendant) 2 Gold Kare ((All are in the Plaintiff ’ s Mother ’ s possession and are to be returned to the Defendant) [ 19 ] The alleged missing items are extensive and while they do appear to be the personal property of the Applicant and while it is alleged that the Respondent has already retained and kept all other matrimonial property of the parties, the Respondent is specifically denying that he ever had exclusive care and control with respect to the jewellery items claimed.

In the Respondent ’ s Affidavit the Respondent has deposed that neither he or nor his parents are in possession of the Applicant ’ s jewellery, and that she always had sole access to that jewellery which was stored in the safety deposit box for which only she had the key. [ 20 ] Accordingly it is not possible for me to order that the Respondent return the extensive list of jewellery to the Applicant given his sworn evidence that he does not have those items, and never was in possession of those items.

Should the Respondent pay to the Applicant retroactive spousal support of $1,800.00 calculated from April 2011 to December

2011? [ 21 ] The Applicant submits that she is entitled to spousal support both retroactive to April 2011, and ongoing at the rate of $200 a month. The Applicant submits that the Respondent earns far more than she does and is fully capable of providing this minimal requested spousal support. Currently the Applicant has to work extra hours to try to meet her monthly budget and struggles to do so. The Respondent it is alleged has his family to assist him with any financial support that he needs, however the Applicant has no family here to assist her with funds.

The parties ’ assets, inclusive of the parties ’ vehicles and home are all in the name allegedly of the Respondent ’ s parents. During the marriage the Respondent refused to let the Applicant work. [ 22 ] With respect to the Applicant ’ s request for spousal support until such time she no longer requires further financial assistance, in the sum of $200 a month, I decline to make any order with respect to retroactive or ongoing spousal support payments at this time.

There is so much conflicting evidence on this point as well in relation to the financial assistance that the Respondent provided the Applicant during the course of, and after the marriage; as well as there is the Respondent ’ s allegations that the Applicant essentially worked two jobs throughout the latter part of their relationship and took all of those funds to provide for her parents.

Given then the alleged total non-contribution by the Applicant t to the household expenses, along with these other circumstances as alleged, I concluding that the issue of spousal support will have to go to trial and cannot be dealt with at this time on an interim basis. Heard on the 10 th day of April, 2012. Dated at the City of Edmonton, Alberta this 16 th day of April, 2012. Donald Lee J.C.Q.B.A. Appearances: Colin Chew for the Applicant Barinder Pannu for the Respondent