Beauchesne v Beauchesne, 2012 ABQB 308

Court of Queen ’ s Bench of Alberta Citation: Beauchesne v Beauchesne, 2012 ABQB 308 Date: 20120509 Docket: 4803 156890 Registry: Edmonton Between: Darryl Christopher Beauchesne Applicant - and - Monica Fay Beauchesne (also known as Monica Fay Shuttleworth) Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________ Background [ 1 ] The Applicant and Respondent were married on August 15, 1998, separated in 2003 and divorced in 2005 in Alberta.

The parties have two children of the marriage, now 10 and 12 years old. On April 4, 2005, Moreau J. granted the divorce judgment and ordered child support as corollary relief. [ 2 ] The Applicant now resides in the United Kingdom (UK). The Respondent has remained in Alberta. The Moreau J. order was registered for collection and enforcement in the Hampshire and Isle of Wight Magistrates Court on October 24, 2008. The Applicant obtained an order on July 9, 2010 from the UK Court purporting to provisionally vary the Moreau J. order. The Applicant was

unrepresented and provided evidence to the UK Court. The Respondent was not in attendance and was not represented. [ 3 ] The UK is a reciprocating jurisdiction under the International Support Orders Act , SA 2000, c I-3.5 (the ISO). The UK “provisional order” was forwarded to the Alberta Designated Authority under the ISO . Issues [ 4 ] Two issues arise: 1) Does the Court have jurisdiction to entertain the matter? 2) If so, what is the appropriate order, if any, on the application to vary child support? 1.

Does the Court have jurisdiction? [ 5 ] The question was framed by counsel for the Designated Authority as being whether the ISO can be used to bring a foreign provisional order before an Alberta court as a variation application under the Divorce Act , RSC 1985, c 3 (2nd Supp). [ 6 ] Given the nature of the issue, the Court directed that n otice of a constitutional question be provided under s 24 of the Judicature Act , RSA 2000, c J-2 to Alberta Justice and the Attorney General of Canada. Both declined to provide submissions.

Divorce Act [ 7 ] Under the Divorce Act , the Court can do the following: - hear and determine a variation proceeding if either former spouse is ordinarily resident in the province at the commencement of the proceeding (s 5(1)(a)); - make an order varying a support order on application by either former spouse (s 17(1)(a). [ 8 ] Sections 18 and 19 contemplate a scheme whereby a provisional order may be obtained in one province in the absence of one former spouse, which order may then be confirmed in another province, in the absence of the other former spouse.

Those sections do not contemplate confirmation of provisional orders from jurisdictions outside of Canada. The Designated Authority under these provisions facilitates the interprovincial transfer of documents. [ 9 ] Where spouses reside in different provinces, the Court may make an order varying support on oral submissions (including by way of telecommunication) or affidavit evidence of the former spouses, but only if both former spouses consent thereto (s 17.1), and in accordance with any applicable rules of the court. [ 10 ]

Section 20 provides that, subject to s 18(2), an order under s 17 or an order confirming a provisional order under s 19 has legal effect throughout Canada and may be registered in any province for enforcement. Section 20(4) provides that a court may only vary such an order in accordance with the Divorce Act , which contemplates variation under s 17 only by a Canadian court.

[ 11 ]

Section 25 of the Divorce Act provides that the body ordinarily competent under the laws of a province to make rules regulating the practice and procedure in that court may make rules applicable to any proceedings under the Divorce Act in a court in a province, including rules prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of the Divorce Act (s 25(2)(g)). Interjurisdictional Support Orders Act [ 12 ]

Section 1(

h) of the ISO defines “provisional support variation order” as: (

i) an order of an Alberta court that varies a support order and that has no force or effect until confirmed by a court in a reciprocating jurisdiction, or (ii) a similar order made in a reciprocating jurisdiction and received for confirmation in Alberta. [ 13 ]

Part 3 of the ISO deals with variation of support orders, and Division 2 of

Part 3 relates to Applicants ordinarily resident outside Alberta. It commences with s 28, defining a “support variation application” as: (

a) a provisional support variation order referred to in subclause (ii) of the definition of “provisional support variation order” in

section 1, or (

b) documents from a reciprocating jurisdiction corresponding to a support variation application described in section 24(2). [ 14 ] Under s 29, the Designated Authority upon receiving a support variation application from the appropriate authority in a reciprocating jurisdiction it must take steps to serve the Alberta Respondent. Under s 30, the Alberta court must consider the evidence given or submitted to the Alberta court, as well as the documents sent from the reciprocating jurisdiction. The Alberta court may direct the Designated Authority to request further information or documents.

Section 31 sets out the rules regarding choice of law. [ 15 ]

Section 23(

b) provides that nothing in

Part 3 allows a support order originally made under the Divorce Act to be varied except as authorized by a federal enactment. [ 16 ] The

Schedule to the Interjurisdictional Support Orders Regulation , Alta Reg 4/2003 lists the reciprocating jurisdictions for the purposes of the ISO , including the United Kingdom and all of the Canadian provinces and territories. Canada is not included as a reciprocating jurisdiction. Alberta Rules of Court [ 17 ] The Alberta Rules of Court , Alta Reg 124/2010 prescribe the manner of applying for variation of an order after judgment under the Divorce Act .

Rule 12.45 provides that an application to vary, suspend or rescind an order of the Court in a proceeding under the Divorce Act must be made by filing a family application in Form FL-18 accompanied with an affidavit in support of the application in accordance with Rule 12.44(1)(a). The family application and affidavit and any other evidence in support of the application must be served on the Respondent at least 20 days before the hearing date.

The Respondent can reply by serving on the Applicant a copy of the affidavit or other evidence within a reasonable time before the date the application is scheduled to be heard or considered, but anything less than 10 days’ notice will be presumed to be prejudicial to the Applicant. Rules 12.46 and 12.47 address the procedure to be followed for provisional orders under s 18 of the DA . They are similar to the procedures prescribed in the ISO .

[ 18 ] The Rules also provide: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, ... (

d) to oblige the parties to communicate honestly, openly and in a timely way... ... 1.3(1) The Court may do either or both of the following: (

a) give any relief or remedy described or referred to in the Judicature Act ; (

b) give any relief or remedy described or referred to in or under these rules or any enactment.

(2) A remedy may be granted by the Court whether or not it is claimed or sought in an action. 1.4(1) To implement and advance the purpose and intention of these rules described in Rule 1.2 the Court may, subject to any specific provision of these rules, make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court.

(2) Without limiting subrule (1), and in addition to any specific authority the Court has under these rules, the Court may, unless specifically limited by these rules, do one or more of the following: ... (

c) give orders or directions or make a ruling with respect to an action, application or proceeding, or a related matter; (

d) make a ruling with respect to how or if these rules apply in particular circumstances or to the operation, practice or procedure under these rules... 1.5(1) If a person contravenes or does not comply with these rules, or if there is an irregularity in a commencement document, pleading, document, affidavit or prescribed form, a party may apply to the Court (

a) to cure the contravention, non-compliance or irregularity, or

(

b) to set aside

an act, application, proceeding or other thing because of prejudice to that party arising from the contravention, non-compliance or irregularity. ...

(4) The Court must not cure any contravention, non-compliance or irregularity unless (

a) to do so will cause no irreparable harm to any party, (

b) in doing so the Court imposes terms or conditions that will (

i) eliminate or ameliorate any reparable harm... ... (

d) it is in the overall interests of justice to cure the contravention, non-compliance or irregularity. ... 1.7(1) The meaning of these rules is to be ascertained from their text, in light of the purpose and intention of these rules, and in the context in which a particular rule appears.

(2) These rules may be applied by analogy to any matter arising that is not dealt with in these rules. ... 1.9 Except as expressly provided, if there is a conflict or inconsistency between these rules and an enactment, the enactment prevails to the extent of the conflict or inconsistency.

Judicature Act [ 19 ] The Judicature Act , RSA 2000, c J-2 provides: 8 The Court in the exercise of its jurisdiction in every proceeding pending before it has power to grant and shall grant, either absolutely or on any reasonable terms and conditions that seem just to the Court, all remedies whatsoever to which any of the parties to the proceeding may appear to be entitled in respect of any and every legal or equitable claim properly brought forward by them in the proceeding, so that as far as possible all matters in controversy between the parties can be completely determined and all multiplicity of legal proceedings concerning those matters avoided. ... 63(2) The Alberta Rules of Court are validated notwithstanding that any provision in the Rules may affect substantive rights.

Case Law [ 20 ] Veit J. in Darel v Darel , 1999 ABQB 881 , 75 Alta LR (3d) 333 refused to grant “confirmation” of a request by Mr. Darel

made to a New York court for a downward modification of an Alberta support order based on information concerning his currentfinancial circumstances. In that case, there was no actual provisional order from a New York judicial officer granting the father avariation.

Veit J. considered whether the Court would have had jurisdiction under the predecessor to the ISO, the ReciprocalEnforcement of Maintenance Orders Act, RSA 1980, c R - 7.1 (REMO), in the face of a New York provisional order. [21] Veit J. cited with approval Cain v Cain, [1995] SJ No 814 (QB) in which Klebuc J. held that a province has no authority toexpose a divorce order to variation under provincial legislation since neither the Divorce Act nor any other federal Act authorizedvariations of divorce orders under Saskatchewan’s REMO.

Klebuc J. held that when the maintenance enforcement officer of oneprovince forwards a divorce support order to the maintenance enforcement officer of another province, such order is not being subjectedto the provisions of Saskatchewan’s REMO; the officer is merely facilitating the process prescribed by ss. 18 and 20(3) of the DivorceAct. He added: 3 In my opinion, reciprocating provinces may not use The Reciprocal Enforcement of Maintenance Orders Act, 1983 to vary or rescinddivorce support orders in light of the procedures contemplated provided for in the Divorce Act.

Without conceding the point, counsel forthe Attorney General suggested that The Reciprocal Enforcement of Maintenance Orders Act, 1983 nonetheless applied in the instantcase because the Divorce Act is silent regarding the registration of divorce support orders in Courts outside Canada and therefore theoperational conflict test in Multiple Access Ltd. v. McCutcheon et al., (SCC), [1982] 2 S.C.R. 161; 138 D.L.R. (3d) 1,can be met. I do not agree.

The Reciprocal Enforcement of Maintenance Orders Act, 1983 deals with more than enforcement -- itprovides a regime whereby reciprocating jurisdictions may provisionally vary each others judgments and orders. Canada is not a partythereto, and therefore, cannot be viewed as a non-reciprocating jurisdiction. Accordingly, to the extent that The Reciprocal Enforcementof Maintenance Orders Act, 1983 jeopardizes the integrity of divorce orders without the express approval of Canada, it conflicts with thejurisdiction of the federal government and cannot be applied: Gould v.

Gould, (SK CA), [1980] 6 W.W.R. 506, 114D.L.R. (3d) 646, 4 Sask. R. 129. If Parliament and the Legislature wish to subject divorce support orders to variation in the mannercontemplated by The Reciprocal Enforcement of Maintenance Orders Act, 1983, the Divorce Act must be amended to provide for thesame. [22] Veit J. in Darel held that the Court cannot ignore constitutionally valid statutory limits on jurisdiction. She concluded: 37 The fact that Mr. Darel cannot move under the confirmation provisions of the Divorce Act, or the related REMO provisions, doesnot mean, of course, that Mr.

Darel cannot ask an Alberta court to modify its earlier decision. It only means that, in order to do so, Mr.Darel will have to initiate proceedings in Alberta. Should Mr. Darel proceed in the ordinary way to bring himself within the jurisdictionof this court to grant variations of existing decisions, Ms. Darel would be entitled to the procedures available in this jurisdiction,including the right of disclosure and the right to ask for security for costs.

Alberta Hansard [23] A review of the debates recorded in Hansard regarding Bill 5 - Interjurisdictional Support Orders Act reveals that thelegislature viewed the ISO as applying only to variation applications of support orders granted under provincial or territorial legislation(see February 27, 2002 at 18; March 5, 2002 at 139, 140; March 14, 2002 at 385 (Rathgeber)).

Discussion [24] The Designated Authority acknowledges that a foreign court lacks the jurisdiction to vary a Divorce Act support order, aforeign Applicant must instead apply in Canada, and the Divorce Act is the substantive law which must be applied on such a variationapplication. [25] The Designated Authority submits, however, that the situation has changed since Darel as a result of the ISO having replacedREMO.

Under the ISO, it is not necessary to bring a provisional order before the Alberta court from the foreign jurisdiction; now it ispossible to bring a support variation application by means of “documents from a reciprocating jurisdiction”. The Designated Authorityacts as the “conduit” for the application, deriving its power from s 29 of the ISO.

[ 26 ] The Designated Authority submits that failure to treat documents from a reciprocating authority as an application for variation of support under the Divorce Act could work an unfairness on foreign Applicants without the means to travel or to hire an Alberta lawyer to bring a variation application under the Rules of Court . The federal government could have legislated regarding the procedure to follow in such cases, but has left procedural matters to the provinces with the exception of the regime set out in ss 18 and 19 of the Divorce Act . [ 27 ] The Designated Authority argues that the issue is one of

interpretation of the ISO . The Designated Authority acts under both the ISO , and ss 18 and 19 of the Divorce Act in relation to the interprovincial transfer of documents. It is possible for the Court to interpret the ISO as applying to the incoming order because it is a provisional order. The ISO definition of “ provisional order ” is broad enough to cover everything except Divorce Act orders specifically addressed in the Divorce Act . The Court would not be contravening the Divorce Act , but rather would be using it. The Divorce Act applies because the order in question is a divorce order.

The ISO turns the provisional order into an application to vary support order where the choice of law is not governed by the ISO , but rather by s 17 of the Divorce Act . The Designated Authority submits that there is no conflict and therefore no issue of paramountcy arises. [ 28 ]

Section 23(

b) of the ISO expressly provides that nothing in

Part 3 allows a support order originally made under the Divorce Act to be varied except as authorized by a federal enactment. Canada is not a reciprocating jurisdiction under the ISO and there is no federal enactment authorizing variation other than as provided in the Divorce Act . Nevertheless, the Designated Authority’s suggested mode of proceeding would promote the goals of facilitating a resolution in a timely and cost-effective manner, and avoiding a multiplicity of proceedings. [ 29 ]

Section 25 of the Divorce Act permits a provincial rule-making body to make rules applicable to any proceedings under the Divorce Act in a court in the province. Since Darel and Cain , the new Rules of Court have been implemented in Alberta. The new Rules provide for a broader approach to

interpretation than was the case under the previous Rules , and must be read in light of the purpose and intention set out in Rule 1.2. [ 30 ] The Rules of Court prescribe the manner of applying for variation of an order after judgment under the Divorce Act . The Rules may be applied by analogy to any matter arising that is not specifically dealt with.

The Court has broad power to cure a contravention, non-compliance or irregularity where it is in the overall interests of justice, on the condition that no irreparable harm is caused to any party. [ 31 ] There are policy arguments against proceeding in the manner proposed. It may raise issues with respect to the Designated Authority’s role before the Court.

However, that issue is not squarely before me, and in the circumstances I deem it appropriate to leave it to the Designated Authority to define the parameters of its involvement as an officer of the Court. [ 32 ] The proposed manner of proceeding may be perceived as generally creating a relative advantage for out-of-country Applicants. However, the Court is required to deal with the particular matter before it. Each case must be considered in its factual context.

If a concern arose about the fairness of the procedure proposed by the Designated Authority in a particular case, the Court could decline to apply its curative powers under the Rules . In applying those powers, the Court is bound to ensure that no irreparable harm is caused to any party. [ 33 ] I conclude that the relevant provisions in the Rules of Court and the Divorce Act are broad and flexible enough to enable the Court to treat the materials presented in relation to the “provisional order” in this case as a variation application under s 17 of the DA .

This would be in keeping with the purpose of the Rules . [ 34 ] There is no evidence of irreparable harm in this case. The Applicant’s intention was to submit materials for confirmation of a provisional order under the ISO , but such an order would be subject to variation by the Alberta court taking into account the evidence submitted in Alberta as well as the documents sent from the reciprocation jurisdiction. In this sense, it is not unlike the situation in which the documents are treated as commencing a fresh variation application.

The Respondent has indicated that she is prepared to defend the application, and has filed materials and made submissions with the assistance of the Designated Authority. 2. Application to Vary Child Support [ 35 ] The substantive issues with respect to child support are:

1) the parties’ incomes during the relevant time periods; 2) the resulting child support obligations (both s 3 and s 7); 3) the appropriate period of retroactivity. Income [ 36 ] The parties separated in 2003 when the two children were approximately two and four years old. The Respondent has had sole custody since then. At the time of the divorce in 2005, Moreau J. ordered support based on a guideline income of $52,000 for the Applicant, and $39,000 for the Respondent. The Applicant was ordered to pay $726 per month plus $249 per month in s 7 expenses (57.14% of childcare costs totalling around $435/month).

Although the parties were required by law to share their financial information on an annual basis, neither one has done so since the divorce. [ 37 ] The Applicant signed his application for the UK court on March 3, 2010. On July 9, 2010 he asked the UK court to consider reducing his payments retroactively, particularly for 2006, the year during which he moved to the UK. [ 38 ] According to the material provided, the Applicant had been employed with the RCAF as an avionics technician when he left that employment in 2006. He had been earning $59,200 in that position. He moved to the UK in 2006.

In the notes of evidence taking during the UK hearing on June 25, 2010, the Applicant indicated that he received a lump sum of $18,000 when he left the RCAF. He invested $13,000 in a retirement pension and used $5,000 for living expenses when he moved to England. It took him eight months to obtain gainful employment. He began working for Fleetlands in 2007. The best information as to the Applicant ’ s income is as follows: 2007 $45,696 2008 $60,547 2009 $70,637 2010 $86,850 [ 39 ] The Applicant indicated in the UK hearing that 2009/10 was an exceptional year due to overtime.

He took the position that support should be based on his 2008/09 income. He stated that while he was able to stay in his employment for the foreseeable future, he expected to return to Canada by the end of 2010 but he is apparently still in the UK. He had unilaterally decided to pay around $612/month in child support because he believed the children were in a public school and were healthy, but were involved in only a few activities. He also stated that the Respondent was remarried and he did not believe that she would return to work following a maternity leave, so childcare would not be necessary.

The Applicant stated that he gave the children substantial presents and had made payments each year of about $300 for clothing. [ 40 ] The UK court “provisionally varied” support to reduce his s 7 payment to $125/month. This would result in a reduction from $975/month in the Moreau J. order to $851/month. The UK court declined to reduce the arrears, but stated that once the variation order was made in Alberta, the UK court would decide as to child support payable for 2007/08. [ 41 ] The Respondent’s affidavit sworn in August 2011 indicates child support arrears of $39,919.26.

The MEPP statement from August 2011 shows arrears of $42,000.

[ 42 ] The Respondent stated that the Applicant has had little contact with the children since leaving Canada. He does not send money specifically for clothing. He does send them Christmas gifts. The Respondent testified that the children attend public school, but there are some standard fees. She has health and dental coverage to a certain percentage. The children were in before and after school childcare from 2007-2009 while the Respondent was studying for a social work diploma. There are currently no childcare expenses, but she is planning on going back to school in September to complete her degree.

She did not have information regarding prospective childcare costs. She is not working outside of the home. The children of the marriage are involved in hockey, tae kwon do and swimming in the summer.

Her income has been: 2005 $44,475 2006 $46,333 2007 $48,926 2008 $46,027 2009 $36,356 2010 $36,562 [ 43 ] Based on the receipts attached to the Respondent’s affidavits, expenses for the extracurricular activities and childcare for the two children were as follows: 2007 $1,587 2008 $5,100 2009 $3,203 2010 $1,929 2011 $1,120 [ 44 ] For the reasons already discussed, the variation application is brought under the Divorce Act and the applicable substantive law is found in the Divorce Act and the Federal Child Support Guidelines made under the Divorce Act . [ 45 ] There has been a material change sufficient to support an application for variation.

Mr. Beauchesne earned less during the year he relocated to the UK, but has earned more than his 2005 income in other years. As well, s 7 expenses have varied over the years. [ 46 ] As for the period of retroactivity, the Court will consider the period from 2007, which is approximately three years prior to the 2010 application in the UK.

[ 47 ] While the Applicant sought to have his child support lowered based on his decrease in income for one year, the Respondent in her response materials argues that it should be increased for the years in which his income increased. The procedure employed in analogous Divorce Act variation applications permits Respondents to include requests for relief in their response materials.

They are not required to file and serve a separate application for relief. [ 48 ] The Federal Child Support Guidelines provide that the presumptive rule is that the amount of a child support order for children under the age of majority is the amount set out in the applicable table (s 3 support), as well as the amount for expenses determined under s 7. No basis for departing from the presumptive rule has been established in this application. The Applicant has not, for example, established circumstances that would cause undue hardship as defined in s 10(2) of the Guidelines .

The Applicant has also not established grounds for arrears forgiveness. [ 49 ] The Designated Authority is directed to recalculate child support owing for the years 2007 forward, using the income figures set out above for each of the parties. For 2011 and ongoing, income figures from 2010 should be used, pending updated information.

Section 7 expenses for the years 2007 to 2011are to be calculated using the expense amounts set out above, and calculating the parties’ proportionate shares. For ongoing s 7 expenses, 2011 figures should be used, pending updated information. [ 50 ] The Designated Authority is directed to prepare an Order reflecting my rulings contained in these reasons. Should the Designated Authority require further directions for this purpose, they may speak to me. Heard on the 5 th day of March, 2012. Dated at the City of Edmonton, Alberta this 9 th day of May, 2012. J.M. Ross J.C.Q.B.A. Appearances: Kristen Hillenbrand

friend of the Court to facilitate ISO Hearing Ronda Goulden Alberta Justice