Betuvski v. Slavica, 2013 ABQB 387

Court of Queen ’ s Bench of Alberta Citation: Betuvski v. Slavica, 2013 ABQB 387 Date: 20130709 Docket: 4813 004874 Registry: Ft. McMurray Between: Milan Betuvski Plaintiff - and - Taseva Slavica Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Taseva Slavica seeks an order for spousal support. Entitlement, amount and duration are all in issue. [ 2 ] The parties married in Macedonia in October 1993. They were separated for a short time in 1999.

They emigrated to Canada from Macedonia in March 2010 and settled initially in Edmonton. They have a daughter who recently turned 18. Ms. Slavica is 49 years old. Mr. Betuvski is 48 years old.

[ 3 ] Mr. Betuvski is an electrical engineer. He worked in that profession when the parties lived in Macedonia. His income was considered high in that country. [ 4 ] The evidence is in conflict as to the nature of Ms. Slavica’s work in Macedonia. She swears that she worked as a shop assistant, as a cook and as a babysitter and house cleaner. He says she was trained and worked as a chef making approximately the country’s median salary. Neither position is supported by documentary evidence. There has been no cross-examination of either party.

I have no means of resolving this conflict in the evidence. [ 5 ] The move to Canada was prompted by anticipation that Mr. Betuvski could find better work and greater future security here. Mr. Betuvski swears that the decision to come to Canada was a decision the parties made together for the sake of improving the standard of life of their family. [ 6 ] Mr. Betuvski is competent in English. Ms. Slavica is not. She is presently enrolled in ESL training. [ 7 ] Not long after the parties arrived in Edmonton, Mr. Betuvski found work in Fort McMurray.

There was disagreement on whether the family should move to Fort McMurray. Mr. Betuvski commuted for a short time while this disagreement persisted. In the end, in July 2012, the parties separated. [ 8 ] The work that Mr. Betuvski found in Fort McMurray is not as an electrical engineer. Indeed Mr. Betuvski’s Macedonian qualifications in that profession are not recognized in Canada. The work he has found is as a crane technician. However his electrical engineering background was clearly relevant to his securing the position. [ 9 ] Mr. Betuvski’s salary statements from his employer are in evidence.

They indicate that the employer reimbursed expenses which Mr. Betuvski has incurred. I can find no indication in the evidence as to what those expenses were. Here is a

summary of the information indicated on the salary statements: Gross Pay Expense Repaid Difference 2010 - July to Dec 31 47,274.65 13,661.55 33,613.10 2011 144,498.04 28,800.00 115,698.04 2012 184,543.98 125.00 184,418.98 2013 - Jan to May 31 92,182.27 0.00 92,182.27 [ 10 ] Mr. Betuvski’s Notice of Assessment for 2010 is in evidence. It shows line 150 income of $38,938 which includes the $33,613 indicated above and income from employers Mr. Betuvski worked for before he started working for his current employer. There is a “2011 Tax Return

Summary” (not a Notice of Assessment) for 2011 in evidence. It indicates total income of $117,116.44 which is consistent with the information in the table above. This figure was used to determine Mr. Betuvski’s child support obligation. There is no tax assessment for 2012 in evidence. Extrapolating from the information concerning Mr. Betuvski’s income for the first 5 months of 2013, his income for the whole of 2013 would be $221,237.45. [ 11 ] The salary statements indicate that Mr. Betuvski has worked many overtime hours to earn at the level of salary he has been paid.

[12] The parties’ separation required Ms. Slavica to attempt to secure employment. She has worked in a restaurant and then as acleaner in a hotel in Edmonton. Her wages have been very low. Her inability to speak English proficiently has limited her ability toearn. Her tax assessments are in evidence. They indicate her line 150 income to be as follows: 2010 8,143.00 2011 5,532.00 2012 12,683.00 [13] Ms. Slavica’s 2012 income was reduced because she underwent surgery and was unable to work for a time. [14] Mr. Betuvski currently pays Ms. Slavica $400 a month spousal support pursuant to an interim order.

Until the parties’daughter turned 18 in January 2013, he also paid child support in the amount of $1020 each month. [15] Mr. Betuvski submits that his significant earnings are the result of several factors that have nothing to do with Ms. Slavica orthe parties’ marriage. These include: - that the qualifications required for his job are qualifications he had acquired before the marriage.

The qualifications he acquiredafter the marriage – those of an electrical engineer – are not recognized in Canada, required for his current work, or used in his currentwork. - that his high earnings are the result of his working in the “hot” labour market of Fort McMurray to which Ms. Slavica refused tomove. - that his high earnings are also the result of his working extensive overtime and taking little or no vacation. [16] Mr. Betuvski cited several authorities to support his position. In argument his counsel relied mainly on two decisions of this Court: D.B.C v.

R.M.W. (2006) 2006 ABQB 905 , 69 Alta.L.R. (4th) 170 and Chalifoux v. Chalifoux, 2006 ABQB 535. Having reviewed these authorities I have concluded that the circumstances of this case are significantly different from the circumstancesin both of them. I have found them of limited assistance. [17] Mr. Betuvski submits that, for the reasons listed above, Ms. Slavica is not entitled to spousal support based on his currentincome. Rather, he submits that his income level for spousal support purposes should be deemed to be only marginally higher than theaverage Alberta income of $68,000. He further submits that Ms.

Slavica is intentionally underemployed and for purposes of determiningspousal support her income should be imputed to be $40,000. His counsel has provided a spousal support guideline calculation using$85,473 as his income, and $40,000 as Ms. Slavica’s income. It indicates spousal support of between $909 and $1213 a month with amidpoint of $1061for a period between 8 to 16 years. [18] Ms. Slavica submits that she is entitled to spousal support on both compensatory and non-compensatory bases and that Mr.Betuvski’s actual income should be used to determine the amount of that support.

She has provided a spousal support guidelinecalculation using $200,000 as Mr. Betuvski’s income and $12,683 as her income. It indicates spousal support of between $3746 and$4995 per month with a midpoint of $4371 for a period between 8 to 16 years. [19] In my view a very important feature of the circumstances is that after a lengthy marriage the parties jointly decided toemigrate to Canada in order to improve their standard of living and financial security. When they came to Canada Mr. Betuvski wascompetent in English and Ms. Slavica was not. Mr.

Betuvski had qualifications and work experience that was likely to be in demand inCanada and Ms. Slavica did not. They had a child who, though nearly an adult, would be in need of parenting. It was logical that Ms.Slavica would fill that role.

[ 20 ] The joint venture which the parties undertook when they decided to emigrate to Canada has been frustrated by a development which, I expect, neither party anticipated. Mr. Betuvski has succeeded in finding lucrative work but it requires him to live in a place where Ms. Slavica does not wish to live. [ 21 ] I do not accept the submission that Ms. Slavica is not entitled to spousal support based on Mr. Betuvski’s actual income because the skills he is using are ones that he developed prior to the marriage and not the ones he acquired during the marriage.

In my view the joint venture upon which these parties embarked was one which contemplated Mr. Betuvski using all of the skills he had in whatever way he could use them for the betterment of the family’s financial situation. No distinction between skills he acquired before or during the marriage is justified. [ 22 ] I also do not accept the submission that Mr. Betuvski should have no obligation to pay spousal support based on his actual income because his success is the result of his own efforts post separation and has occurred without any contribution by Ms. Slavica. In my view Ms.

Slavica did contribute – she cared for the parties’ child while Mr. Betuvski worked in Fort McMurray. [ 23 ] If the “joint venture” aspect of the situation is seen as a form of quasi-contractual basis for spousal support, Ms. Slavica’s refusal to go with Mr. Betuvski to the place where he is able to make the significant income he makes, arguably constitutes a “breach” of the contract which disentitles Ms. Slavica to spousal support on that basis. [ 24 ] I am satisfied, however, that whether or not that is the case, Ms. Slavica is entitled to spousal support on both compensatory and non-compensatory bases.

The couple came to Canada expecting that Mr. Betuvski’s skills would be marketable and would provide them with financial security. That has happened for Mr. Betuvski. Because of their separation, it has not happened for Ms. Slavica. The breakdown of the marriage has clearly resulted in serious economic disadvantage and economic hardship for her. [ 25 ] I do not accept the submission that Ms. Slavica is underemployed. In my view the evidence justifies the conclusion that she has made all reasonable efforts to earn a reasonable wage. [ 26 ] In determining the amount of spousal support Mr.

Betuvski should pay I have concluded that the amount should be less than what it would otherwise be to account for the fact that Mr. Betuvski must live in an expensive community to earn the income he does, that he works excessive hours to earn it, and that the foundational assumptions of the parties’ joint venture emigration have been frustrated to some extent. In my view the appropriate amount of spousal support for Mr. Betuvski to pay is $3000 a month. I so order. [ 27 ] The commencement date of this obligation will be May 1, 2012 which is one month after Ms. Slavica brought this application. Mr.

Betuvski will have credit for such spousal support he has paid since that date against the $3000 per month I have ordered. [ 28 ] The effect of my order will be to create significant spousal support arrears for the period May 1, 2012 to June 30, 2013. I direct that so long as Mr.

Betuvski pays $500 per month toward the retirement of those arrears along with his $3000 a month ongoing spousal support payment, commencing July 1, 2013, enforcement of the accumulated arrears will be stayed. [ 29 ] As to the duration of the spousal support payments, in my view they should continue for 3 years, that is, until July 1, 2016, at which time, Mr. Betuvski should have leave to apply to have the situation reviewed. In my view the onus should be on Mr. Betuvski to initiate a review if he is of the view that the circumstances at the time justify some change to his spousal support obligation.

His support obligation should continue unchanged if he does not, until such time as he does seek a review. [ 30 ] Ms. Slavica is entitled to costs of this application which I set at $1500 plus disbursements. Heard on the 27 th day of June 2013. Dated at the City of Ft. McMurray, Alberta this 28 th day of June 2013.

B.R. Burrows J.C.Q.B.A. Appearances: Jonathan Song for the Plaintiff Yemi Philip, Student-at-Law for the Defendant