Burak v Burak, 2012 ABQB 452

Court of Queen ’ s Bench of Alberta Citation: Burak v Burak, 2012 ABQB 452 Date: 20120711 Docket: 4803 124708 Registry: Edmonton Between: Darrell Dean Burak Plaintiff - and - Cathy Anne Burak Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Mr. and Ms. Burak each applied in Family Law Chambers for orders relating to child support.

I heard their submissions and reserved my decision so that I could review the Court file. [ 2 ] The parties were divorced on July 17, 2003. They have one child who is now 12 years old. The Divorce Judgment gave them shared custody of the child. It recited that Mr. Burak ’ s income was $37,000 and Ms. Burak ’ s income was $28,100. The Divorce Judgment required Mr. Burak to make a setoff child support payment of $70 a month. [ 3 ] On July 8, 2010 Belzil J. granted an order which recited that Mr. Burak ’ s income for 2009 was $32,500 and that Ms.

Burak ’ s income for 2009 was $54,149. The Order directed Ms. Burak to pay Mr. Burak child support arrears for 2009 of $3515.04. It required her also to pay Mr. Burak $840 for child support overpayments and her share of day-care costs totaling $2056.50. The total payable under the Order was $6411.54. [ 4 ] Initially the form of Order signed by Belzil J. did not include the standard MEP enforcement clause.

Belzil J. amended the Order on March 12, 2012 to include an annual disclosure clause and a MEP enforcement clause. [ 5 ] On June 8, 2012 the Director of the Child Support Recalculation Program filed a Recalculation Decision. It recited that Mr. Burak ’ s income was $62,500 and Ms. Burak ’ s income was $50,643. It amended the setoff child support payment Mr. Burak is required to make to be $113 per month commencing July 16, 2012 with the first payment due on August 1, 2012, unless either party obtained a contradictory order. [ 6 ] Mr.

Burak ’ s application is for an order staying his ongoing monthly child support obligation until the amounts Belzil J. ordered Ms. Burak to pay have been set off. [He actually seeks an order requiring Ms. Burak to pay him $250 a month in addition to the setoff of his obligation so that her debt for arrears will be offset more quickly. I advised him in Chambers that I do not have the ability to grant such an order.] [ 7 ] Ms. Burak ’ s cross application appears to be for an order setting the amount of Mr.

Burak ’ s setoff payment for 2010 at $206 a month, establishing his arrears for 2010 and having that set off against her arrears for 2009. She uses $62,500 as Mr. Burak ’ s income for 2010 because the Recalculation decision indicates that Mr. Burak ’ s income of $62,500 used in that decision was determined from his 2010 Revenue Canada Assessment. [ 8 ] In my view Ms. Burak ’ s application has merit. Mr. Burak ’ s setoff child support obligation starting January 1, 2010 should be adjusted from what the Divorce Judgment provided. I find Mr.

Burak ’ s 2010 guideline income was $62,500 and the monthly child support payment for that income level is $524. I find Ms. Burak ’ s 2010 guideline income was $40,400. The monthly child support payment for that income level is $318. The offset child support payable by Mr. Burak for 2010 was $206 per month for a total for the 12 months of 2010 of $2472. I understand Mr. Burak paid $70 per month in 2010 for a total of $840 for the year. Mr. Burak ’ s arrears for 2010 are therefore $1632. [ 9 ] For 2011 the materials indicate that Ms. Burak ’ s income was $50,643.

The monthly child support amount for that income is $411. There is no information as to Mr. Burak ’ s 2011 income. Until it is provided it is appropriate to use his 2010 income of $62,500 and the monthly child support amount of $524. The offset amount payable by Mr. Burak for 2011 is $113 per month or $1356 for the year. Mr. Burak paid $70 per month in 2011 for a total of $840 for the year. Mr. Burak ’ s arrears for 2011 are therefore $516. [ 10 ] For the first 6 ½ months of 2012 there is no new information concerning incomes. The setoff amount of $113 should be used until further income information is provided.

For the 6 ½ months Mr. Burak ’ s total setoff payment would be $734.50. His actual payment would be $455. His arrears for that period are $279.50. [ 11 ] I calculate the total arrears payable by Mr. Burak for 2010, 2011 and the first 6 ½ months of 2012 to be $2427.50. [ 12 ] Assuming that Ms. Burak had made no payment of the arrears ordered by Belzil J. on July 2010, after setting off Mr. Burak ’ s arrears against Ms. Burak ’ s arrears, Ms. Burak continues to owe Mr. Burak $3984.04. [ 13 ] That figure may require further adjustment if there were

section 7 expenses incurred by either party in 2010, 2011 and the first half of 2012 which need to be taken into account. I direct the parties to provide any receipts they have in respect of such

section 7 expenses to the Director of Maintenance Enforcement whom I direct to make any necessary further adjustments to the accounting I have calculated. [ 14 ] Mr. Burak ’ s application also has merit. I order that there be a stay of Mr. Burak ’ s monthly child support obligation until the

amount of the payments he would have been required to make but for the stay equals the amount of the arrears owed by Ms. Burak, which I calculate to be $3984.04, subject to the adjustments previously and hereafter mentioned. I direct the Director of Maintenance Enforcement to adjust my calculations to properly reflect any payment that Ms. Burak has in fact made toward the arrears. I direct that all the calculations be adjusted as required when Mr. Burak ’ s 2011 income is disclosed and when both Mr. Burak and Ms.

Burak ’ s 2012 incomes are disclosed. [ 15 ] This Memorandum of Decision will be mailed to the parties. I would ask the Family Law Information Centre to prepare the formal order reflecting this decision and have it mailed to the parties as well. Heard on the 10 th day of July 2012. Dated at the City of Edmonton, Alberta this 11 th day of July 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Both parities appeared without counsel.