Martin v. Martin, 2012 ABQB 55

Court of Queen ’ s Bench of Alberta Citation: Martin v. Martin, 2012 ABQB 55 Date: 20120123 Docket: 4804 008837 Registry: Grande Prairie Between: Launa Dee Haverland Martin Applicant - and - David Stanley Martin Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Martin asks for an order declaring child support arrears of $6,345.00 and establishing ongoing child support at the rate of $865.00 monthly based on the most current information available about Mr. Martin’s income as a salesman. Relying on the great financial disparity between his circumstances and those of Ms. Martin and the resulting disproportionately negative effect on him of unresolved financial issues, Mr. Martin asks for a stay of enforcement of his child support obligation until the matrimonial property issues have been settled.. [ 2 ] Mr.

Martin’s application for a stay is granted: his child support arrears and ongoing support obligation will not be enforced until January 31, 2013, in the expectation that the parties’ property dispute will be settled by that date.

[ 3 ] Here, the net proceeds of the sale of the matrimonial home, some $70,000.00, which is being held in trust, guarantees that Mr. Martin’s child support obligation will be met, even if actual payments are deferred for a year. During that year, it is accepted by both parties that the welfare of child of the marriage will not be in the least negatively affected if Mr. Martin does not make actual payments. [ 4 ] Because of the great disparity between their financial and economic circumstances, it is disproportionately difficult for Mr.

Martin to make both disputed payments on matrimonial debts and child support payments. A relatively short stay of enforcement with respect to child support will put the parties in a relatively more fair position to allow each to defend their position on property. [ 5 ] Because Mr. Martin is a salesman, for child support purposes, it may be fair to average his income over a three year period; therefore, the determination of Mr. Martin’s income for support purposes is adjourned until January 31, 2013. 1. Background [ 6 ] Although Mr. Martin’s gross annual income from employment is in the range of $100,000.00, Ms.

Martin’s financial circumstances are vastly more comfortable. Ms. Martin is retired. She acknowledges that she is independently wealthy and that her wealth greatly outstrips that of Mr. Martin. The parties agree that the financial circumstances of Ms. Martin, as custodial parent, are such that the failure of Mr. Martin to make monthly child support payments for a period of 12 months will not have the slightest negative effect on the child of the marriage. [ 7 ] On January 11, 2011, on a pre-disclosure basis, this court deemed Mr.

Martin’s gross income to be $91,700.00 and ordered him to pay $807.00 per month in child support. Mr. Martin has made some monthly payments, although some of those payments are for less than the amount of the order. In total, Ms. Martin calculates that Mr. Martin has already accumulated $6,345.00 in arrears on the existing order. [ 8 ] Moreover, Ms. Martin alleges that more current information has been obtained in relation to Mr. Martin’s income; based on the new information, she asks for an increase in the amount of monthly child support from $807.00 to $865.00. [ 9 ] Mr.

Martin’s income is from employment as a salesperson. [ 10 ] Mr. Martin alleges that, since January 2011, Ms. Martin has failed to pay her fair share of family debts. In particular, he states that he has paid approximately $15,000.00 in ongoing expenses - relating to such matters as condo fees and maintenance fees for a time share property the couple owns in Hawaii and which Ms. Martin has actually used during that period - on Ms. Martin’s behalf. [ 11 ] Ms.

Martin acknowledges that there are property issues in dispute but notes that there is no court order requiring her to make any monthly payments on matrimonial debts. Also, she notes that it seems unlikely that the property dispute will be resolved any time soon since the parties are still at a relatively early stage of discovery. 2. Should a stay of enforcement of child support obligations be granted? [ 12 ] The fact that Ms. Martin is very much more wealthy than he is does not, of course, relieve Mr. Martin of the obligation to pay his fair share of his child’s support.

That is not because the child needs the money; rather, it is because the child needs to know that the father has a responsibility towards the child and is meeting that responsibility and because Mr. Martin needs to know that he has a legal as well as a moral responsibility towards his child.

[ 13 ] Should the enforcement of Mr. Martin’s obligation to pay child support be suspended until the couple’s property issues are settled? For obvious policy reasons, it will be rare that a parent’s obligation to pay child support can appropriately be suspended. Moreover, as Ms. Martin observes, there is a court order requiring Mr.

Martin to pay child support while there is no order requiring her to make any contribution to the matrimonial debts. [ 14 ] Even with those factors in mind, I have concluded that the situation here constitutes one of the rare circumstances in which the enforcement of a child support obligation can be suspended for a relatively short period of time. In coming to that conclusion, I have taken the following into account: - given Ms. Martin’s financial circumstances, it is clear that the welfare of the child of the marriage will not be negatively affected if Mr.

Martin does not actually make child support payments for one year; - the existence of the trust fund containing the proceeds of the sale of the matrimonial home means that the eventual payment by Mr. Martin of his child support obligations is assured; - the circumstances here are such that the negative effects of the ongoing property dispute disproportionately affect Mr. Martin. His only income is from employment. From that finite income, if he must pay both undisputed debts - such as his child support obligation - and disputed debts - such as the alleged matrimonial property debts.

His overall financial situation may be seriously affected by his obligation to keep up both kinds of debts; for example, if as a result of making his child support payment he is unable to keep up the payments on the Hawaii condo, he may lose his interest in that property. Given his relatively low income, should he lose his interest in that property, he may well be unable to replace that particular recreational property with a similar property. On the other hand, because of her great wealth, it may be that even if the Hawaii property is lost, Ms.

Martin will easily be able to acquire a replacement recreational property. In other words, by suspending enforcement of Mr. Martin’s child support obligation, the court can somewhat level the playing field between the parties so that neither will feel obligated to make unfair concessions to resolve those financial disputes. [ 15 ] In

summary on this issue, the court grants a suspension of enforcement of Mr. Martin’s child support obligations until January 31, 2013. 3. Setting ongoing child support; Declaration of arrears [ 16 ] Because Mr. Martin is a salesman, his yearly income may vary from year to year. In such a situation, it may well be more fair, for purposes of child support, to take an average of Mr. Martin’s income over the last three years than to take his most recent income as the basis for child support. However, neither party addressed this issue at the hearing.

Therefore, the amount of ongoing child support, and any retroactivity of support, are adjourned to January 31, 2013. [ 17 ] Similarly, in order to preserve as much flexibility as possible for the parties to reach a settlement of property issues which might include the off-setting of obligations, and because Mr. Martin’s failure to make the child support payments ordered by the court speaks for itself, I will not make any order declaring arrears. 4. Costs [ 18 ] The costs of this application will be determined by the court that settles the property dispute between the parties.

Heard on the 28 th day of November, 2011.

Dated at the City of Grande Prairie, Alberta this 20 th day of January, 2012. J.B. Veit J.C.Q.B.A. Appearances: Joseph Canavan, Dobko & Wheaton for Ms. Martin Wayne C. Ayling, Wayne Ayling Law Office for Mr. Martin