Elemen v. Carbonel, 2012 ABQB 674

Court of Queen ’ s Bench of Alberta Citation: Elemen v. Carbonel, 2012 ABQB 674 Date: 20121031 Docket: 4803 156715 Registry: Edmonton Between: Janet N. Elemen Applicant - and - Solomon B. Carbonel Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Alleging that he has made untrue statements in his statement of defence to her claim for divorce and corollary relief relating to parenting, Ms. Elemen asks the court to strike out Mr. Carbonel ’ s statement of defence. Ms. Elemen ’ s 10 year old daughter resides now, and has always resided, in the Philippines. Prior to serving her statement of claim substitutionally on Mr. Carbonyl in the Philippines, Ms.

Elemen - who is self-represented - did not apply, under Rule 11.25(2), for permission to serve her statement of claim outside Canada. [ 2 ] Pursuant to the provisions of Rule 1.5, and because both litigants are unrepresented, the court assumes the right to correct non-compliance with the Rules in a way which does not cause irreparable harm to either party and to prevent the recurrence of any irregularity.

Relying on that authority, the court retroactively considers the conflicts issue addressed in R. 11.25(2) and strikes those portions of the applicant ’ s statement of claim relating to the child of the marriage; in the circumstances here, the Philippines, not Alberta, is the forum conveniens for deciding parenting issues.

[ 3 ] In light of the decision to strike out the portions of the statement of claim relating to the child of the marriage, the court strikes from the statement of defence all claims relating to the child of the marriage as no longer being relevant. The court observes that a dispute concerning the truthfulness of claims in a statement of defence would not constitute a basis for striking out the challenged claims: any such challenge would be determined at a trial. [ 4 ] Given the information contained in Ms.

Elemen ’ s affidavits, the court considers that she has sufficiently demonstrated her attempt to provide reasonable financial arrangements for the support of her daughter. In these circumstances, s. 11 of the Divorce Act does not prevent Ms. Elemen from obtaining a divorce. [ 5 ] A prudent and wise litigant in Ms. Elemen ’ s position would presumably attempt to obtain agreement with the foreigner parent concerning parenting of their child, including financial support of that child.

If such an agreement were not possible, a prudent and wise litigant in her position would set aside in a trust account for the child ’ s benefit sufficient monthly payments to meet the federal child support guidelines.

Although a Philippine court might order a Canadian parent to pay less than the Canadian federal child support guidelines, I do not expect that such a court would order the Canadian parent to pay more by way of child support than would be required under Canadian law. [ 6 ] In the circumstances here, the court concludes that it is entitled to consider the contested claim to a divorce without an oral hearing. Each of the parties has set out their position in writing. Accepting all of Mr. Carbonel ’ s statements in his redacted statement of defence as being true, Mr.

Carbonel has not raised any matter that would prevent this court from granting a divorce judgment to Ms. Elemen. The court does grant such a divorce judgment. The court requires, however, that in a

preamble to the divorce judgment, Ms. Elemen must set out the name and date of birth of the child of the marriage as well as Ms. Elemen ’ s understanding of the child ’ s current residence. Cases and authority cited [ 7 ] By the court: Timoshcenko v Timoshcenko 2012 ABQB 200 , Roco v Roco 2010 ABQB 683 . 1. Background [ 8 ] In 2011, Janet Elemen, who is resident and domiciled in Alberta, Canada, issued a Statement of Claim for Divorce against her husband, Solomon B. Carbonel, who is resident and domiciled in the Philippines. Throughout these proceedings, it appears that Ms. Elemen has been self-represented.

In her claim, Ms. Elemen states that the parties ceased cohabiting on February 14, 2007. In her claim, Ms. Carbonel claimed joint custody of the child of the marriage, a daughter who was born in 2002; Ms. Elemen however proposed that primary care of the child should be with the respondent in the Philippines, with generous and liberal access to herself. Ms. Elemen proposed that she should pay child support to the respondent according to the federal child support guidelines. [ 9 ] In connection with her Statement of Claim, Ms.

Elemen received from this court an order for substitutional service, allowing her to serve the respondent by way of registered mail and requiring her to serve an affidavit, and the order for substitutional service, along with the statement of claim, on Mr. Carbonel. It is not clear from the file which affidavit the court expected Ms. Elemen to serve along with the Statement of Claim. The order gave to Mr. Carbonel 60 days within which to file a response to the documents served on him, failing which Ms. Elemen was at liberty to apply for relief without further order of the court.

Despite having received an order for substitutional service, Ms. Elemen did not file an affidavit of service establishing that she actually did comply with the order for substitutional service. The court observes that the standard information provided to self-represented litigants who are applying for divorces informs them that they must file an affidavit of service after they receive an order for substitutional service. [ 10 ] Despite the absence of an affidavit of service, it appears that Mr. Carbonel was in fact served with the statement of claim because, on August 8, 2011, Mr.

Carbonel, who also appears to be self-represented, filed what he described as a Statement of Defence to Ms. Elemen ’ s claim. In his statement of defence, Mr. Carbonel agrees that Ms. Elemen left the Philippines to work in Canada in 2007, although he states that the month in which the separation occurred is somewhat later than the month indicated by Ms. Elemen. Mr. Carbonel also made many statements relating to the parties ’ daughter. In addition to those statements, Mr. Carbonel made the following statements:

8. In the above stated background, I am requiring a further explanation and discussion from my wife Janet Elemen Carbonel regarding her claim of divorce . . . 9. That my wife must invite me to Canada for the conduct of personal discussion regarding her claim for a divorce or; 10. She may return to the Philippines for the settlement of conditions; 11. Since divorce is not allowed by law in the Philippines, I require the signing the any separation and divorce documents in Canada (only if after all conditions are agreed by both of us). [ 11 ] In an affidavit filed on November 22, 2011, Ms.

Elemen swears that her statement of claim for divorce was served by registered mail on May 20, 2011; in that document she refers to an affidavit of service already filed in the proceedings. However, as indicated above, there is no such affidavit in the court file. In the affidavit filed on November 22, 2011, Ms. Elemen swears that she separated from her spouse in February, 2007, that their daughter was born in 2002, that there are no agreements between the parties relating to their daughter, but that she and her husband agreed that she would have generous and liberal access to her daughter.

She swears that her guideline income is $32,387.00 and she undertakes to pay $265.00 per month and to provide medical and dental insurance coverage for the support of her daughter. It is not clear in what connection this affidavit was filed. [ 12 ] Ms. Elemen apparently did not request, or obtain, an order, pursuant to Rule 11.25(2), permitting her to serve her statement of claim outside of Canada.

It is not clear to me that the standard information provided to self-represented litigants who are applying for a divorce and whose spouse resides outside of Canada includes a reference to the obligation to obtain an order for service outside of Canada. Because she did not seek an order permitting her to serve her statement of claim in the Philippines, she did not provide a document that would explain to Mr. Carbonel the basis for this court ’ s jurisdiction to grant a divorce and to make parenting decisions.

If such a statement had been provided, perhaps along the following lines, An Alberta court can grant my application for divorce because I have been residing in Alberta for longer than 12 months and an Alberta court can grant my application relating to parenting because I am the mother of a child of the marriage Mr. Carbonel would have been better informed about whether he could, or should, contest an Alberta court ’ s right to decide what is in the best interests of his daughter. [ 13 ] On August 27, 2012, Ms.

Elemen brought a family law application to strike out the statement of defence and for a divorce judgment. Her grounds for bringing the application are: The defendant ’ s claims are untrue. He claims in part to challenge the divorce claiming I am not paying child support. I am paying child support and have been until he refused to accept it and he is only doing this in an attempt to get me to bring him to Canada. [ 14 ] In answer to the field on the printed form of the application asking whether there is any irregularity complained of or objection relied on, Ms.

Elemen swears: As specified in my Affidavit and in particular that I left our daughter in his care. As stated in my Affidavit, our daughter was left in the care of his mother who I regularly sent child support to until the time that he, the respondent refused to accept the money after returning from working abroad. [ 15 ] In her application, Ms. Elemen referred to an affidavit she swore on August 7, 2012. In that affidavit she swears that his affidavit is “ full of untrue statements ” . She acknowledges that she did not tell her husband about her whereabouts in Canada.

Among many other matters, she also swears that, from the outset, she sent a $100.00 monthly allowance to her daughter, and that she subsequently increased that to $130.00. She adds that she sent additional amounts for extra expenses such as school enrollment, birthdays, Christmas, etc. She states that she has a new family in Edmonton. She states, without giving any particulars, that she believes

that she would be putting herself in danger if she went to the Philippines to have any discussion with her husband. [ 16 ] Ms. Elemen applied for an order for substitutional service of her family law application of August 27, 2012.

An order was issued on August 27, 2012; someone who is not identified on the document stroked out the printed words “ for Substitutional ” immediately after the word “ Order ” on the form of order and wrote in by hand “ ex juris ” so that the document signed by a judge of this court is described as an “ Order Service Ex Juris ” . [ 17 ] In fact, since the family law application was not a commencement document, there was no requirement in the Rules for Ms. Elemen to comply with Rule 11.25(2) in relation to her family law application. [ 18 ] However, there is no affidavit of service from Ms.

Elemen regarding compliance with the court order of August 27, 2012 which was effectively only an order for substitutional service. [ 19 ] Again, despite the fact that there is no affidavit of service of the family law application, there is proof that the family law application was served on Mr. Carbonel because he filed a response on October 22, 2012. In that response, among other matters, Mr. Carbonel states that he was never abusive nor dominating towards his wife.

He also states: “ I am not forcing my wife to invite me to Canada, but instead requiring her to include me in the application to enter Canada together with our child, but, I stated in previous affidavit of statements that, only “ if ” after we both will have established first the conditions and agreement on the matter ” . 2. Effect of Ms. Elemen ’ s failure to comply with Rule 11.25(2) [ 20 ] Ms. Elemen ’ s failure to comply with Rule 11.25(2) is not fatal.

Pursuant to the provisions of Rule 1.5, the court can cure non-compliance with the Rules: R. 1.5(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, or (ii) prevent the recurrence of the contravention, non compliance or irregularity, (

c) in doing so the Court imposes a suitable sanction, if any, for the contravention, non compliance or irregularity, and (

d) it is in the overall interests of justice to cure the contravention, non compliance or irregularity. [ 21 ] Similarly, the fact that Ms. Elemen has failed to provide affidavits of service to inform the court that she has actually served Mr. Carbonel in the way which the court has ordered is not fatal in the circumstances here since Mr. Carbonel has communicated with the court direct and thereby assured the court that he was, in fact, served.

Also, in the circumstances here, the portion of the affidavit of service dealing with the dates on which service was effected is not crucial to any noting in default: Although it may be that Mr. Carbonel ’ s statement of defence was filed more than 60 days after having been served with Ms. Elemen ’ s statement of claim, Ms. Elemen is not asking for his statement of defence to be ignored on that basis. 3. Alberta is not the forum conveniens for making determinations concerning parenting; all matters relating to the child of the marriage ’ s best interests must be determined by a Philippine court

[ 22 ] If the court had been asked to permit service in the Philippines of Ms. Elemen ’ s statement of claim before the statement of claim was served, I assume that it would not have done so in relation to those portions of her claim in which Ms. Elemen requests corollary relief relative to parenting.

Although this court may have the technical ability to grant relief relative to parenting, it is clearly not the forum conveniens relative to parenting: the Philippine courts are the proper courts to consider what is in the best interests of this child since the child has lived all of her 10 years in the Philippines: Timoshcenko, Roco . Retroactively, therefore, this court determines that Ms. Elemen should not include in her statement of claim any reference to collateral relief relative to parenting. [ 23 ] However, Ms.

Elemen is clearly entitled to apply for a divorce judgment since she has lived in Alberta, Canada, for longer than 12 months prior to the filing of her statement of claim. 4. Ms. Elemen ’ s statement of claim should be redacted to remove any reference to parenting [ 24 ] In order to properly reflect this court ’ s jurisdiction in Ms. Elemen ’ s claim, the court will redact her statement of claim to remove all references to parenting. [ 25 ] This redaction will not cause Ms. Elemen any irreparable harm: corollary relief can be claimed at any time. Therefore, if Ms.

Elemen were to obtain legal advice, she might bring an application to have an Alberta court consider her claim for parenting despite the fact that her daughter has never lived in this jurisdiction. Naturally, any such application by Ms. Elemen would be potentially subject to a costs determination if she were not successful in her application. [ 26 ] Nor will this redaction cause Mr. Carbonel any irreparable harm; he can similarly bring any claim for corollary relief at any time in the future although he is also potentially subject to the discipline of costs. 5. Mr.

Carbonel ’ s statement of defence should be redacted to remove any reference to parenting [ 27 ] Once Ms. Elemen ’ s statement of claim is redacted to limit her claim to a claim for a divorce judgment, Mr. Carbonel ’ s statement of defence should be redacted to remove from it any reference to parenting. [ 28 ] This redaction will not cause Mr. Carbonel any irreparable harm: he can, in the future, bring any claim he wishes in relation to parenting. [ 29 ] Nor will this redaction cause Ms.

Elemen any irreparable harm again because corollary matters can be brought at any time. [ 30 ] For the information of the parties, the court observes that one litigant ’ s claim that a statement in a pleading is untrue is not a basis for striking out those statements. On the contrary, the challenge to such statements is, in fact, the reason that we have trials. 6. A trial is not necessary in the circumstances here [ 31 ] In some circumstances, this court has the power to determine contested claims on the basis of affidavit evidence rather than in a viva voce hearing.

This is a situation in which an oral hearing, or trial, is not required. [ 32 ] In coming to the conclusion that a trial is not required in the circumstances here once the pleadings have been redacted, the court takes into account the fact that the defendant, Mr. Carbonel, does not contest any of the facts that Ms. Elemen claims entitle her to a divorce. Specifically, Mr. Carbonel agrees that the parties are legally married, that Ms. Elemen left him in 2007 without having made any agreement, and that they have not since reconciled. In those circumstances, there is no need for a trial since Mr. Carbonel

acknowledges all of the facts which entitle Ms. Elemen to a divorce. [ 33 ] Mr. Carbonel is, of course, quite wrong in stating that his wife should invite him to Canada for discussions concerning the divorce. She has no obligation to do any such thing. There is nothing to discuss in relation to the divorce itself since he has agreed to all of the elements required to be proved in order to obtain a divorce. Ms. Elemen does not owe him any additional explanations. 7. Does s. 11 of the Divorce Act prevent Ms. Elemen from obtaining a divorce judgment when this court does not make arrangements for the financial support of her daughter? [ 34 ] Section 11(1) (

b) of the Divorce Act does not prevent Ms. Elemen from obtaining a divorce judgment. That sub-paragraph states: Marginal note:Duty of court — bars 11.

(1) In a divorce proceeding, it is the duty of the court . . . (

b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; and . . . [ 35 ] I am satisfied from the sworn evidence provided by Ms. Elemen that she has attempted to make reasonable financial arrangements for the financial support of the child of this marriage. There is no reason to deny her a divorce. 8. The court grants Ms.

Elemen a divorce judgment [ 36 ] The court is satisfied that all technical pre-requisites to the granting of a divorce have been met: court staff have received a certificate from the central divorce registry indicating that these are the only proceedings initiated with respect to this marriage. [ 37 ] After having considered all of the material filed by each of the parties, the court grants Ms. Elemen a divorce judgment, without oral hearing. [ 38 ] The court does, however, require Ms. Elemen to set out in a

preamble to the divorce judgment a statement to the effect that there is one child of the marriage, who is named and whose date of birth is given, and who is believed by the applicant to be residing at a specific address in the Philippines. In that way, any other court which may have to look into the situation of corollary relief will be made aware that this court declined to exercise its parenting jurisdiction in the circumstances here because it considered that it was not the forum conveniens . Heard on the 26 th day of October, 2012.

Dated at the City of Edmonton, Alberta this 31 st day of October, 2012. J.B. Veit J.C.Q.B.A. Appearances: Ms. Elemen, on her own behalf Mr. Carbonel, did not appear in person but made written submissions