Southern v Southern, 2013 ABQB 442

Court of Queen ’ s Bench of Alberta Citation: Southern v Southern, 2013 ABQB 442 Date: 20130808 Docket: 4808 012372 Registry: Lethbridge Between: Nicole Marie Mae Southern Applicant - and - Jason Patrick Southern Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.H. Langston _______________________________________________________ Introduction [ 1 ] Ms. Southern filed a Statement of Claim for Divorce and Division of Matrimonial Property on June 17, 2013. The only outstanding issues revolve around spousal support. Ms. Southern claims that Mr.

Southern is deliberately underemployed and should be imputed with a greater income than what he is currently earning. The amount and duration of any spousal support are also in issue. Background [ 2 ] The parties began cohabitation in April of 2001 and were married June 3, 2006. Ms. Southern left the matrimonial home on April 5, 2013. Therefore, they spent a total of 12 years together as a couple, 7 years during which they were married.

[ 3 ] Ms. and Mr. Southern did not have any children. Ms. Southern is young, having graduated from high school in June of 2000. She appears to have been employed in various positions throughout her relationship with Mr. Southern, and has been employed as a hairdresser since 2006. On average, she is now earning $24,000.00 per year. Determination of Mr. Southern ’s Income [ 4 ] Mr. Southern is projected to earn about $32,000.00 in 2013, but Ms. Southern claims that Mr. Southern should be imputed with a yearly income of $75,000.00. [ 5 ] From 2005 to 2012, Mr. Southern worked as a driller in the oilfield. Ms.

Southern claims that in this employment, his yearly income ranged from $75,000.00 to $120,000.00 per year. Although no specific yearly incomes, pay stubs or income tax returns were adduced to support this claim, the amount was not disputed by Mr. Southern. [ 6 ] Mr. Southern then left the oilfield and started working as a labourer with Moduline. The pay stubs from Moduline show that Mr. Southern was hired on August 14, 2012, 7½ months before the couples’ separation. [ 7 ] Ms. Southern claims that Mr. Southern was forced to take the job at Moduline because he lost his driver’s licence.

Her affidavit states that Mr. Southern lost his licence in the spring of 2010, and was then caught driving without a licence in September of that year. In oral argument, counsel stated that Mr. Southern lost his licence in 2011, and that the suspension period was one year. At this time, Mr. Southern does not have his licence back. Apparently he needs to attend a driving class and have an interlock device installed in his vehicle before he can obtain his licence, regardless of the length of the suspension period. Ms. Southern’s counsel claims that the cost for Mr.

Southern to obtain his licence would be about $1,100.00. [ 8 ] Mr. Southern disputes Ms. Southern’s claim that he had to quit his oilfield employment because of the loss of his licence. He states that he did not need to quit because he had co-workers who willingly picked him up for work every day. Rather, he claims that Ms. Southern wanted him to quit working on the rigs and get a job closer to home with less hours. In order to enable the couple to spend more time together, Mr. Southern complied, and obtained the employment with Moduline. [ 9 ] Mr.

Southern’s income tax return for 2012, a year in which he spent approximately 6 months employed in the oilfield, shows an income of $57,843. Mr. Southern is currently projected to earn about $32,000.00 in 2013. As of June, 2013, Mr. Southern was paid $16.96/hour at Moduline. [ 10 ] Ms. Southern claims that Mr. Southern has told her that when he gets his licence back he intends to resume employment in the oilfield, and she believes he will do this. She argues that he is intentionally underemployed because right now, Mr.

Southern could install an interlock device in his vehicle, obtain his licence, and immediately begin working in the oilfield. She also points out that in prior years Mr. Southern worked on a tug boat on Vancouver Island, and made substantially more income than he is now.

She asserts that since he has worked on Vancouver Island before, and has family there, this past employment should also be considered in determining whether his current actions constitute deliberate underemployment. [ 11 ] The test for determining whether a person is intentionally underemployed on an application for either child or spousal support is set out by the Alberta Court of Appeal in Hunt v Smolis-Hunt , 2001 ABCA 229 , [2001] AJ No 1170.

The majority in that case stated that in order to impute income, the court requires “either proof of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her support obligations”: para 42. It is not enough that Mr. Southern may have the possibility to earn more income. [ 12 ] Mr. Southern did not quit working in the oilfield until the eighth month of 2012. If, as Ms. Southern claims, Mr.

Southern was forced to quit working as a driller because of the loss of his licence, one would have expected his oilfield employment to end relatively quickly after his licence suspension, and not so much later.

[ 13 ] It is also significant that Mr. Southern’s change in employment occurred some time before the couples’ separation. This circumstance does not support an inference of intentional underemployment. [ 14 ] Regardless of whether it was because of the loss of his licence or an attempt to spend more time focussing on their relationship, I do not believe that Mr. Southern’s current employment status should be viewed unfavourably in light of his employment change in 2012. I am not satisfied that his current employment constitutes deliberate underemployment. Just because Mr.

Southern earned $75,000.00 previously does not mean he is obliged to go out and seek that income every year in order to now support Ms. Southern. [ 15 ] I refuse to impute Mr. Southern with any income, and find that for support purposes, his income is $32,000.00 per year. Entitlement to and Quantum of Spousal Support [ 16 ] Ms. Southern never gave up employment, relocated, or financially assisted Mr. Southern in advancing his career. Rather, she is the one that had schooling expenses and earned accreditation as a journeyman stylist during the marriage. [ 17 ] Mr.

Southern is now solely responsible for carrying the mortgage and other costs associated with the matrimonial home. The home was purchased at a time when the couple’s financial situation was much more lucrative, and I accept that Mr. Southern’s finances are stretched because he incurred costs in readying the home for listing and sale, and that he continues to earn a lower income while making payments related to the home. Contrary to Ms. Southern’s counsel’s argument, I place no weight on his parent’s decision to assist him with certain expenses but not pay others. Ms.

Southern is currently living with her parents, and therefore also receiving parental assistance. [ 18 ] I agree with Mr. Southern’s counsel that there is a need for spousal support on both sides, but that neither has the ability to pay. Mr. Southern does not have to pay Ms. Southern any spousal support. [ 19 ] Mr. Southern is entitled to his costs. Heard on the 11 th day of July, 2013. Dated at Lethbridge, Alberta this 1 st day of August, 2013. J.H. Langston J.C.Q.B.A. Appearances: For the Applicant Darren D. Cahoon

Rath Law Office For the Respondent Rocky Lane Hornung Rocky Lane Hornung Law Office