Madhoo-Persaud v. Mattson, 2013 ABQB 206

Court of Queen ’ s Bench of Alberta Citation: Madhoo-Persaud v. Mattson, 2013 ABQB 206 Date: 20130415 Docket: 4801 128483 Registry: Calgary Between: Neranjan Madhoo-Persaud Applicant - and - Joyce Lee Mattson, aka Joyce Lee Madhoo-Persaud Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This memorandum is a follow-up to my decision Madhoo-Persaud v. Mattson, 2012 ABQB 542 . [ 2 ] In that decision, I concluded that Mr.

Madhoo-Persaud's circumstances had changed materially by the termination of his long-term employment and the injuries suffered in a motor vehicle accident, both of which events postdated the parties' matrimonial property and corollary relief settlement. [ 3 ] Ms. Mattson's circumstances had not changed in that she was still not gainfully employed and she still fosters a child and

looks after a grandson. [ 4 ] At the time of the hearing of the application before me in March, 2012, Mr. Madhoo-Persaud was in the process of appealing a decision from his disability insurer which had terminated his benefits effective May 22, 2012. His employment had been terminated sometime earlier. He was also appealing a decision of the Canada Pension Plan which had disallowed his claim for disability benefits.

He had presented evidence from his general physician that he was incapable of working because of the injuries he suffered in the motor vehicle accident. [ 5 ] It was unclear at the time of the application and the decision whether Mr. Madhoo-Persaud would be successful on either or both appeals. [ 6 ] My decision indicates at para. 68 that Mr. Madhoo-Persaud's income for the relevant periods needed to be verified. At paras. 71 to 74, I gave some general directions as to how any reductions in Mr. Madhoo-Persaud's income were to be dealt with, and remained seized with the matter for any resulting adjustments.

Subsequent materials [ 7 ] Mr. Madhoo-Persaud has filed subsequent materials as directed, by way of an affidavit sworn January 13, 2013. From these materials, it is clear that Mr. Madhoo-Persaud lost his appeal from the discontinuance of his disability benefits, and he has been unsuccessful in obtaining disability benefits from Canada Pension Plan. His income has, since May 22, 2012, been zero, other than withdrawals from registered retirement savings plans. His family doctor continues to be of the opinion that Mr. Madhoo-Persaud cannot work, and will not be able to work for some time. [ 8 ] Ms.

Mattson did not file any supplemental materials for the present application. Her former counsel has ceased to act, and she is now self-represented. Decision [ 9 ] Following para. 73 of my August, 2012 decision, it is clear that after May, 2012, Mr. Madhoo-Persaud's income for spousal support purposes should be set at zero. RRSP withdrawals are not income for such purposes, and there is no basis for me to question Mr. Madhoo-Persaud's doctor's opinion. Disability under insurance programs and for Canada Pension Plan purposes is different from disability for spousal support purposes, unless it can be shown that Mr.

Madhoo-Persaud has some present ability to earn income in some reasonable fashion. [ 10 ] Ms. Mattson objects to spousal support being eliminated or suspended, and points out that at a minimum Mr. Madhoo-Persaud could rent out part of the matrimonial home and generate income by doing so. Mr. Madhoo-Persaud responds to that indicating that the matrimonial home was part of his matrimonial property settlement, and that Ms. Mattson received a substantial equalization payment. Requiring him to pay ongoing support out of his RRSPs or from the former matrimonial home would be "double dipping" on Ms.

Mattson's part. [ 11 ] Ms. Mattson says that she has exhausted her share of matrimonial property through living expenses since receipt of the equalization payment, and she believes Mr. Madhoo-Persaud should be required to do the same to continue to pay her support, as she is in need of it. [ 12 ] I do not think that Mr. Madhoo-Persaud is required to make spousal support payments out of his RRSPs; Ms. Mattson already received her share of matrimonial property, and requiring Mr.

Madhoo-Persaud to make payments out of his savings is not only double-dipping, but requiring support to be paid out of capital and not income. That is rarely done, and these are not circumstances in which it would be appropriate to order him to do so.

[ 13 ] Income from the matrimonial home, which was part of Mr. Madhoo-Persaud's settlement, could potentially be counted as income for support purposes on the same basis as some notional income could be attributed to Ms. Mattson's cash settlement of the matrimonial property. The difference is that assets are gone; Mr.

Madhoo-Persaud still has his assets, or at least the former matrimonial home. [ 14 ] In my view, it is not appropriate to attribute any income to him for the rental potential of his home; any income may be offset to a large extent by expenses and there is no evidence before me that he is actually renting part of the home out, or has any intention of doing so. [ 15 ] As a result, I am satisfied that Mr.

Madhoo-Persaud has no income available for spousal support purposes, and that his spousal support obligations should be suspended until his circumstances have changed. [ 16 ] He has provided a letter from his doctor, indicating that his injuries from the motor vehicle accident are still preventing him from working at anything. I note that he has a skilled trade (although needs upgrading) and that he is only 47. His injuries would appear to be temporary (which is apparently the reason he has not been successful in getting CPP benefits).

It is likely on the evidence before me that he will at some time in the future be capable of working. He should likely be spending his time upgrading his skills and education to prepare himself for re-entry into the work force when he is medically fit to do so. When his circumstances change, he will likely be again responsible for a measure of spousal support to Ms. Mattson. When that time will come, however, is uncertain. [ 17 ] In the meantime, Ms. Mattson is entitled to an update at least every six months as to Mr. Madhoo-Persaud's state of health and ability to work. [ 18 ] In addition, Mr.

Madhoo-Persaud has advanced a claim against the other driver in the motor vehicle accident in which he was involved. The claim includes a claim for lost earnings or earning capacity. It is unclear whether it includes a claim for loss of future earnings. [ 19 ] To the extent that Mr. Madhoo-Persaud receives compensation in that litigation arising out of loss of earnings or earning capacity, Ms. Mattson may be entitled to receive some portion of it to the extent any compensation relates to periods when Ms. Mattson has not been in receipt of spousal support because of Mr. Madhoo-Persaud's lack of income. [ 20 ] Mr.

Madhoo-Persaud should update Ms. Mattson at least every six months as to the status of this litigation. When the litigation is resolved, Ms. Mattson is entitled to details of any portion of the recovery relating to loss of earnings or earning capacity. At that time, she may be able to establish some entitlement for retroactive spousal support for any period after May, 2012 when she has not been in receipt of the payments which were agreed to in their settlement. [ 21 ] I do not direct that Ms. Mattson reimburse Mr. Madhoo-Persaud for any payments he has made to her after the end of May, 2012.

It is to his credit that he has continued to make payments, and difficulties scheduling this review have delayed a decision on his ongoing obligations having regard to his lack of income. He is entitled to credit for any such amounts against any payments he may be ordered to make in the future, when his circumstances change or he receives compensation for lost wages or loss of earning capacity. Conclusion [ 22 ] Mr. Madhoo-Persaud is not obliged to pay spousal support to Ms.

Mattson after May, 2012 because he has had no income from which to pay spousal support since that time. [ 23 ] This is a temporary suspension of his obligations only, and he may be required to recommence payments to Ms. Mattson when his circumstances change or he receives compensation in his motor vehicle accident claim for loss of earnings or loss of earning capacity. Those determinations are for another application at a later date.

[ 24 ] In the meantime, Mr. Madhoo-Persaud is to advise Ms. Mattson as to his medical status and the status of his injury claim, at least every six months starting September 20, 2013. [ 25 ] Ms. Mattson is not required to repay any amounts received after May, 2012, but Mr. Madhoo-Persaud is entitled to a future credit against any amounts he may be ordered to pay if and when his circumstances change or his lawsuit is resolved. [ 26 ] At the hearing itself, the parties agreed to the mechanics of payment by Mr. Madhoo-Persaud for the balance owed by him on the matrimonial property settlement, and Ms.

Mattson obtaining various items of personal property owned by her and still being stored at the former matrimonial home. [ 27 ] I hope those arrangements have been completed, so that spousal support issues will be the only area of controversy between these parties. Heard by video conference on the 18 th day of March, 2013. Dated at the City of Edmonton, Alberta, this 4 th day of April, 2013. Robert A. Graesser J.C.Q.B.A. Appearances: Ben R. Plumer for the Applicant Joyce Lee Mattson On her own behalf