Samoilova v Mahnic, 2012 ABQB 465

Court of Queen ’ s Bench of Alberta Citation: Samoilova v Mahnic, 2012 ABQB 465 Date: 20120725 Docket: 4801 127051 Registry: Calgary Between: Ioulia Samoilova Plaintiffs - and - Robert Mahnic Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. J. Hall _______________________________________________________ [ 1 ] The parties met in Russia and fell in love. Ms.

Samoilova’s job in Russia came to an end and in 1998 she and her 8 year old daughter Elena came to Canada on a visa. The parties married in January 1999 in Canada. Ms. Samoilova and her daughter returned to Russia for some 6 months, then immigrated to Canada. The parties and Elena resided together as a family until July 1, 2005 when Mr. Mahnic moved from the rented house and fully separated from Ms. Samoilova and Elena. While Mr. Mahnic had wanted to formally adopt Elena, Ms. Samoilova had reservations; arguments ensued which were a major contributor to the separation of the parties. [ 2 ] Mr.

Mahnic had gone through a bankruptcy at the outset of the marriage. However, he was able to find gainful employment and was fully employed from soon after the marriage to the time of separation, and has remained fully employed since.

[ 3 ] Both of the parties are well educated. Ms. Samoilova was gainfully employed in Russia until termination in 1998. She has had some difficulties in maintaining full time employment in Canada.

Her employment history since moving to Canada, summarized from her resume exhibited at trial, is as follows: 2000 - 2001 Ferguson Simek Clark Engineers and Architects Yellowknife NWT - Translator 2002 - 2005 Freelance Interpreter 2005 - 2006 Vancor - project secretary 2005 Canadian Association and Petroleum Land Administrators - Volunteer 2005 - 2008 Various retail jobs 2008 - 2011 Casting for Companies - Talent Scout and Recruiting Assistant These jobs were often not full time and were of short duration. Ms.

Samoilova’s earnings throughout these years are disclosed as: 2000 $ 2,381 2001 $12,635 2002 $ ​​ 2003 $ 6,935 2004 $ 1,078 2005 $25,427 2006 $24,879 2007 $13,137 2008 $17,529 2009 $24,879 2010 $21,563 2011 $24,708 [ 4 ] Mr. Mahnic’s employment, summarized from his resume exhibited at trial is as follows: 1995 - 2000 AMEC Earth and Environmental 2000 - 2002 Indian and Northern Affairs Canada - Yellowknife NWT 2002 - 2011 National Energy Board 2011 - present TransCanada Pipelines Limited Mr. Mahnic’s line 150 income from the year of separation is as follows: 2005 $127,019

2008 $114,218 2007 $125,551 2008 $118,492 2009 $129,835 2010 $133,143 2011 $148,704 [ 5 ] Ms. Samoilova’s daughter has done exceptionally well in school and in extra curricular activities. She is now 21 years of age and enrolled in the Commerce Faculty of the University of Calgary, seeking to earn a double undergraduate degree in Commerce and in Arts (Communication studies). She is on

schedule to complete these studies in December, 2013. She has earned a number of scholarships during her education which have gone a long way towards paying for tuition, books and living expenses. She has also maintained summer employment. [ 6 ] The parties arrived at trial with a myriad of issues to be determined. However, before the trial ended, the parties advised me they had settled many of these issues. A consent order was accordingly prepared respecting those issues. [ 7 ] Mr. Mahnic originally took the position that he no long stood in loco parentis to Elena.

However, he withdrew from that position and agreed to pay retroactive and ongoing child support. The parties advised me at trial that they had agreed upon the amounts to be paid. However they now state that unresolved issues regarding child support are: 1. Should there be a top up between the child support Mr. Mahnic paid from January 2012 to June of 2012? 2. Should ongoing child support be the present amount calculated by the parties as $1,292 per month until it ends in December 2013, or should it be recalculated for June 2013 to December 2013 based on Mr.

Mahnic’s 2012 income, whatever that proves to be. [ 8 ] Finally, the remaining issue is retroactive and ongoing spousal support claimed by Ms. Samoilova. Child Support [ 9 ] Dealing with the child support issues, I was advised at trial that the parties had reached agreement, and that agreement is as postulated by Mr. Mahnic; the parties agreed to the amount of arrears of child support as being $10,668, being the difference between the amounts paid as per interim orders, and the amount payable under the child support guidelines for the various annual incomes earned by Mr. Mahnic.

The parties agreed that on a go forward basis Mr. Mahnic would pay $1,292 per month up to December 2013, at which point child support for Elena terminates. There was no suggestion that Mr. Mahnic was to top up for January 2012 to June 2012, nor that his income would be further reviewed and child support recalculated in June 2013. [ 10 ] The parties advised me in open court that this agreement had been reached. My judgment and final order shall reflect that agreement. Spousal Support [ 11 ] Mr. Mahnic was the main breadwinner throughout the relatively short marriage. In the main that was because Ms.

Samoilova had difficulty finding full time, rewarding employment. Ms. Samoilova underwent further education to retrain during the course of the marriage, attending at Mount Royal College from the fall of 2004 until graduating in May of 2005, obtaining her Land Administration Certificate. Following that she obtained employment at Encana, through a placement agency in July 2005, the same month Mr. Mahnic moved out.

[12] Following separation, some arrangements were initially made by the parties respecting payment of support by Mr. Mahnic.However, the relationship deteriorated to the point where there was a distinct lack of communication between the parties. To complicatematters, Ms. Samoilova’s job came to an end in February of 2006. [13] In an application by Ms. Samoilova, Madam Justice Rawlins ordered uncharacterized support of $2,000 in April, 2006. InMay 2006, Madam Justice Kenny ordered interim spousal support of $500 per month.

In July 2006 Madam Justice Horner orderedinterim interim spousal support of $1,000 per month commencing August 1, 2006. [14] In September 2006 Justice Hawco ordered interim spousal support of $1,200 per month to April, 2007. His order providedthat, all orders for support were interim and child and spousal support was ultimately to be determined at trial. His order provided that,the issue of interim spousal support could be further pursued after April 2007. Ms.

Samoilova brought many motions for documentdiscovery but did not pursue further spousal support until July 2011. [15] In November of 2011 Justice Stevens ordered interim spousal support for December 2011and January of 2012 of $2,000 permonth pending a special chambers application. In January of 2102 Madam Justice Eidsvik ordered the matter to trial and terminatedinterim spousal support until determined at trial. [16] Ms.

Samoilova called expert psychological and psychiatric evidence to show that, from before the separation to the presenttime, she has suffered from anxiety and depression; that the anxiety and depression affected her ability to maintain employment; and thatthe anxiety and depression were caused by the problems with her marriage and the separation. [17] I do not accept the expert opinion evidence given in this case that the anxiety and depression were caused by the marriagebreakdown. The psychologist who gave evidence acknowledged that, as she was the treating psychologist for Ms.

Samoilova she wouldbe in breach of her professional rules of conduct to assess causation. She did not conduct a proper assessment. I reject the evidence in herexpert’s report regarding causation. The psychiatrist was also a treating psychiatrist. His reports were brief and without detail. Therewere devoid of any analysis of causation or any external verification. The psychiatrist simply accepted Ms Samoilova’s assertions as tocausation. I do not consider that causation of Ms.

Samoilova’s medical difficulties has been established by the experts called by her. [18] Having said that, however, I am of the view that causation of Ms. Samoilova’s medical problems is only relevant if theapplicant seeks to reopen spousal support after a final agreement as to spousal support has been reached between the parties. In such acase the court will examine causation of the medical issues to see if they were caused by the marriage or marriage breakup. See Corbeilv.

Corbeil, 2001 ABCA 220; Dumais v Dumais (MB CA), 14 RFL (3d) 337 (Man.C.A.). [19] Where, as here, spousal support has only been dealt with on an interim basis, the court must determine entitlement of theapplicant, and quantum if entitlement exists. One of the factors to be considered will be the health of the applicant. The cause of suchhealth disorders, however, is irrelevant to the analysis. [20] There is a basis here for entitlement by Ms. Samoilova. She came to a foreign country to marry and live with Mr.

Mahnic.While her English was already exceptionally good (her jobs in Russia involved translation between Russian and English), she found thatcircumstances rendered it impossible for her to find steady employment in her field, of performing technical translations for the oil patch.Economic and political circumstances in Russia had caused investment by Canadian corporations in Russia to dry up. [21] Ms. Samoilova made retraining efforts, supported financially and emotionally by Mr. Mahnic. Still, she was unable to turnthat training into long term full time employment. [22] By the time of separation, Ms.

Samoilova was qualified by education, training and experience to be fully employed in ameaningful way . Further, her 14 1/2 year old child no longer required before or after school care. Regrettably, however, Ms. Samoilovawas unable to find and hold rewarding employment. This, I find, was partially due to her emotional and mental problems of anxiety anddepression.

[ 23 ] I find that the circumstances set out above entitle Ms. Samoilova to spousal support. [ 24 ] I find that a reasonable period of spousal support in relation to this marriage, is 3 years, from July 2005 to the end of June 2008. [ 25 ] Mr. Mahnic made all court ordered interim spousal support payments during this period of time. In total, Mr.

Mahnic has made spousal support payments totalling $15,100.00 (all other payments made by him have been treated by the parties as being child support payments, even when unspecified at the time they were awarded). [ 26 ] Counsel for the Applicant has put forth Spousal Support Advisory Guidelines’ calculations on a ​with child support​ formula, based on the incomes of the parties. Both she and Mr. Mahnic argued before me that the mid point calculation was appropriate.

Those calculations, found in Exhibit 8, result in spousal support calculations as follows: For July 1, 2005 to December 31, 2005 - $13,711 For 2006 - $21,814 For 2007 - $32,111 For January 1 to June 30, 2008 - $16,203 Total for 3 years $83,839 [ 27 ] From that amount of spousal support I deduct the amount paid, of $15,100. In the result I find that Ms. Samoilova is entitled to a judgment for retroactive spousal support in the amount of $68,739.00. This amount shall be payable in 2 equal annual instalments, with the first payment on September 1, 2012. [ 28 ] Ms.

Samoilova claims ongoing spousal support, based upon her position that she is unemployed and continues to be treated for anxiety and depression. I am of the view that spousal support should be limited here to the retroactive spousal support referred to above; taking into account that the marriage was of short duration, and that during the marriage Mr. Mahnic paid the bills while Ms. Samoilova retrained. The strain of these proceedings having come to an end, Ms. Samoilova should be able to return to self sufficiency without further ongoing support. I decline to award Ms.

Samoilova ongoing spousal support. [ 29 ] Both parties seek a Judgment of Divorce. Grounds having been proven and so the Divorce is ordered. Mr. Mahnic shall continue to maintain the daughter Elena on his employer’s health and dental plans until December 2013. If those plans so allow he shall also maintain coverage for Ms. Samoilova on those plans until benefits for her are no longer available. If, however, Ms.

Samoilova becomes ineligible for further coverage as a result of the divorce, then she shall become responsible to obtain and pay for her own coverage or medical and dental expenses. [ 30 ] Taking into account the matters agreed upon between the parties and the decisions reached herein, I have prepared an Order for the parties’ consideration, attached as

Schedule A hereto. Should there be disagreement as to the wording or contents of the order, the parties may address me further. Otherwise, each of the parties is to sign the Order as being the order given and submit it to me for signature. [ 31 ] The parties may also make arrangements to speak to me regarding costs of the action.

Heard on the 4th day of June, 2012 to the 8th day of June, 2012. Dated at the City of Calgary, Alberta this 23rd day of July, 2012. R. J. Hall J.C.Q.B.A. Appearances: Ms. A McVea of Lacourciere Associates for the Plaintiffs Robert Mahnic - Self Represented

SCHEDULE A COURT FILE NO. 4801-127051 COURT Court of Queen’s Bench of Alberta JUDICIAL CENTRE Calgary PLAINTIFF Ioulia Samoilova also know as Julia Samoilova also know as Julies Samoilova DEFENDANT Robert Jacob Mahnic DOCUMENT DIVORCE AND COROLLARY RELIEF JUDGMENT ADDRESS FOR Court of Queen’s Bench of Alberta SERVICE AND 601 - 5 th Street S.W.

CONTACT Calgary, Alberta INFORMATION OF T2P 5P7 PARTY FILING THIS DOCUMENT DATE ON WHICH ORDER WAS PRONOUNCED: JUNE 8, 2012 NAME OF JUSTICE WHO GRANTED THIS ORDER: Mr.

JUSTICE ROBERT HALL UPON HAVING the matters in dispute set to Trial which sat on June 4, June 5, June 6, June 7, and June 8, 2012; AND UPON hearing evidence on behalf of the Plaintiff and upon hearing representations from counsel for the Plaintiff; AND UPON hearing evidence on behalf of the Defendant and upon haring representations from the Defendant who was self- represented; AND UPON the Court being satisfied that the Defendant stands “in loco parentis” to the Child: ELENA SAMOILOVA, born [...] [...], 1990 AND UPON the Plaintiff being found to have a guideline income for 2011 of $24,708.00 AND UPON the Defendant being found to have a guideline income for 2011 of $148,704.00; AND UPON the Court being advised that the child, Elena, will be in full time attendance at a post-secondary institution until December 2013; AND UPON NOTING that the Parties have reached consent as to matter detailed in the within Order; excepting paragraphs 3, 11 and 12 hereof, which paragraphs have been decided herein by the Court; IT IS HEREBY ADJUDGED: 1.

The Court grants a Judgment of Divorce between the Plaintiff and the Defendant, who were married on January 15, 1999 at Edmonton in the Province of Alberta the divorce to be effective on the 31st day after the day this Judgment is made, unless this Judgment is appealed before the 31st day. 2. The Defendant shall pay to the Plaintiff s. 3 base child support the amount of $1292.00 per month commencing July 1, 2012 and continuing on the 1 st of each and every month thereafter until termination on December 31, 2013;

3. The Defendant shall pay to the Plaintiff the lump sum amount of $10,668.00 in full and final settlement of retroactive child support for the period between July 2005 to the date of this Order and this amount shall be paid in two installments being a payment of $5,334.00 on July 1, 2012 and a second payment of $5,334.00 on August 1, 2012; 4. The Defendant shall pay to the Plaintiff his share of ongoing post-secondary

section 7 expenses in the total amount of $4,080.00 to be paid in three installments of $1,360.00 each on or before the following dates: September 1, 2012, January 1, 2013, and September 1, 2013 after which date s. 7 expenses shall terminate. 5. Any and all claims for retroactive amounts of s. 7 expenses from the date of separation on July 1, 2005 to the date of this Order owed by the Defendant to the Plaintiff are waived; 6. The Defendant shall continue to provide s. 7 expenses in the form of continuing current coverage to workplace extended health care benefits for the Child, Elena, until December 31, 2013; 7.

The Defendant shall continue to include the Plaintiff on his workplace extended health care and dental benefits plan so long as the Plaintiff continues to be a spouse as defined by his employer’s healthcare policy; 8. The Defendant shall pay to the Plaintiff the sum of $570.00 to compensate for medical and dental expenses incurred by the Plaintiff during a lapse in the Defendant’s workplace extended health care and dental benefits coverage between July 15 and October 1, 2011 and this amount shall be paid on or before July 1, 2012; 9.

The Plaintiff shall be entitled to apply for a re-apportionment of the Defendant’s unadjusted Canada Pension Plan credits acquired from the date of marriage on January 15, 1999 to the date of separation on July 1, 2005 pursuant to the Canada Pension Plan Act , s. 55.1 and s. 55.11; 10. The Public Service Superannuation Act (PSSA) Pension numbered [...] of the Defendant shall be divided as to the total accrued value from the date of marriage on January 15, 1999 to the value of the pension benefit as at the date of separation on July 1, 2005 and the Plaintiff shall have transferred to her: (

a) FIFTY (50%) PERCENT of the Total Pre-Division Benefit and; (

b) The investment earnings earned on the Plaintiff’s share of the Pension from the date of separation being July 1, 2005 to the date that the Plaintiff’s share is ultimately transferred to her; 11. Judgment is granted to the Plaintiff for retroactive spousal support from the Defendant in the amount of $68,739.00, payable in 2 equal annual instalments of $34,369.50 on September 1, 2012 and September 1, 2013; 12. The Plaintiff shall not be entitled to ongoing spousal support; 13.

The amounts owing under this Order shall be paid to the Director of Maintenance Enforcement (“MEP”) at 7 th Floor North, 10365 - 97 Street, Edmonton, Alberta T5J 3@7 (telephone 780-422-5555), (website www.albertamep.gov.ab.ca ) and shall be enforced by MEP on the filing of the Order with MEP by the creditor (recipient of support) or debtor (payor of support). The amounts owing shall continue to be enforced by MEP until the party who filed this Order gives MEP notice in writing withdrawing this Order from filing in accordance with

Section 9 of the Maintenance Enforcement Act .

________________________________________ Justice of the Court of Queen’s Bench of Alberta Justice Robert Hall Approved as Order Given: Per: _______________ Per: ____________________ Anne McVea Robert Mahnic Solicitor for the Plaintiff Defendant AFFIDAVIT OF EXECUTION CANADA ) I, Province of Alberta ) of the City of Calgary, in the TO WIT: ) Province of Alberta MAKE OATH AND SAY: 1.

That I was personally present and did se ROBERT MAHNIC named in the within instrument, who, on the basis of the identification provided to me, I believe to be the person named in the within (or annexed) instrument, duly sign and execute the same for purposes named therein. 2. That the same was executed at the City of Calgary in the Province of Alberta. 3. That I know the said ROBERT MAHNIC and he is in my belief of the full age of eighteen years.

SWORN before me at the ) City of Calgary in the Province ) of Alberta this day of July, 2012 ) ______________________________ ) _________________________ ) A Commissioner for Oaths in ) and for the Province of Alberta )