Kordyban v. Kordyban, 2013 ABQB 500

Court of Queen ’ s Bench of Alberta Citation: Kordyban v. Kordyban, 2013 ABQB 500 Date: 20130903 Docket: 4803 150703 Registry: Edmonton Between: Bruce John Kordyban Applicant - and - Sandra Pauline Kordyban Respondent _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice D.C. Read _________________________________________ ______________ [ 1 ] The Applicant, Bruce Kordyban seeks to vary spousal support pursuant to s. 17 of the Divorce Act . [ 2 ] The parties were divorced on January 27, 2012 after entering into a written agreement on August 25, 2011.

The divorce judgment provided that Mr. Kordyban would pay spousal support to Ms. Kordyban of $2,000 per month “starting the 31 st day after any new employment [he] is able to obtain and continuing each month until further order”. This provision of the judgment is based upon the parties’ written agreement. Paragraph 16 of the agreement also provided “if there is an important change in the circumstances of either party, the amount of spousal support may be varied by written agreement or court order”. [ 3 ] The parties had a long marriage. When they divorced, their four children were all adults.

Only Megan, the youngest, who suffers from a disability, lived with her mother. Mr. Kordyban is an engineer and had spent his entire working life in the oil industry. He

had worked in Libya for a number of years but when the agreement was reached, he was unemployed because the revolutionary war inLibya had caused his employer to have to shut down and send all foreign employees out of the country. Mr. Kordyban was uncertainwhen or if he would be able to return to work in Libya and was applying for positions in Canada. [4] As it turned out, he was able to go back to work in late March 2012 only a month or so after the divorce but failed to tell Ms.Kordyban until September 2012. Since then, however, he has paid spousal support of $3,500 per month in order to pay off the arrears.

Hedid pay off all arrears by February 2013. [5] Both parties agree that a change in circumstances is required before support can be varied. Mr. Kordyban alleges a numberof changes of circumstances which he says justify a variation in spousal support. He says he has lost all of the assets he had in Libya ashe had to abandon them and has had to replace them. He puts the value of these lost items at more than $17,000. He says he incurredover $100,000 in debt while he was unemployed, setting out the details of these debts in his affidavit.

He rents a room from his daughterKayla when he is in Canada and says that Megan, the youngest has left her mother’s house and is now also living with Kayla. He saysthat he is aiding Kayla in paying off her former common law husband’s interest in the home. He says further that he has been aidinganother daughter Jessica because she is “almost bankrupt”. He says that both their son Jason and Kayla desire to go to school, Jason toNAIT and Kayla to U Vic and he will have to aid them financially to enable this to occur. He estimates that Jason’s expenses will be$4,000 per year and Jessica’s over $15,000 per year.

He also says he is aiding Megan by paying $400 per month for tutoring. He saysthat Ms. Kordyban was working full time when he was not working and she has quit because he is back at work. He says that she is ableto work full time and has chosen not to. He also says that Ms. Kordyban is now living with her boyfriend who is sharing expenses withher. He also says that since the regime change in Libya, his income tax situation is very different and he will have to pay higher incometax as a consequence. [6] Ms. Kordyban denies there has been any change in circumstances sufficient to trigger the operation of s. 17.

She says shelives in a trailer which she purchased after the matrimonial home sold and her boyfriend does not live with her. She says that all of thechildren are adults and says that any aid Mr. Kordyban wants to give them is a voluntary gift and not a requirement. She doubts thatJason will go to school because he has been talking about it for years with no action and says that Kayla’s education ended at Grade 9 soshe will have to do extensive upgrading in order to get into U Vic. Ms. Kordyban denies she quit her full time position and says she waslaid off.

Finally, she offers evidence that she is suffering from cervical spine problems which she says disables her from working. [7] Section 17 (4.1) of the Divorce Act provides: Factors for spousal support order –

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in thecondition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or thelast variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [8] The Supreme Court of Canada has recently addressed the law surrounding variation applications and orders.

That decisionreinforced the requirement of a material change in circumstances prior to a variation order being made. A material change is a changesuch that, if known at the time, would likely have resulted in different terms: LMP v LS, 2011 SCC 64, at para 45 (per Abella andRothstein JJ) and para 66 (per Cromwell

J) citing Willick v Willick, (SCC), [1994] 3 SCR 670. A variation shouldproceed on the basis that the correctness of the prior order is not in issue: idem, at para 33 (per Abella and Rothstein JJ) and para 69 (perCromwell J). [9] Section 17(7) provides that a variation of spousal support should: (

a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and aboveany obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [10] In LMP the majority distinguished between a s. 15.2 initial spousal support order, and a s. 17(4.1) review of an order alreadygiven. While the "objectives" of each order are the same, the factors for each order are different.

As the court stated, at paragraph 23: 23 ... there are differences between what a court is directed to consider in making an initial support order and on a variation of that order.Notably, unlike on an initial application for spousal support under s. 15.2(4)(c), which specifically directs that a court consider "anyorder, agreement or arrangement relating to support of either spouse", s. 17(4.1) makes no reference to agreements and simply requiresthat a court be satisfied "that a change in the condition, means, needs or other circumstances of either former spouse has occurred" sincethe making of the prior order or the last variation of that order.

Because of these differences in language, it is important to keep the s.15.2 and s. 17 analyses distinct. [11] The court also comments with regard to what it calls the "appropriate variation" once a material change threshold in s. 17 hasbeen met: If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to bemade in light of the change in circumstances. The court then takes into account the material change, and should limit itself to makingonly the variation justified by that change.

As Justice L'Heureux-Dubé, concurring in Willick, (SCC), [1994] 3 S.C.R.670, observed: "A variation under the Act is neither an appeal of the original order nor a de novo hearing" (p. 739). As earlier stated, asBastarache and Arbour JJ. said in Miglin, 2003 SCC 24 , [2003] 1 S.C.R. 303, "judges making variation orders under s. 17 limitthemselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one,

unless the circumstances require the rescission, rather than a mere variation of the order" (para. 62). [12] Variation involves the application of both s. 17(4.1) and s. 17(7) of the Divorce Act. In Hickey, (SCC),[1999] 2 S.C.R. 518, L'Heureux-Dubé J. described the interplay between them as follows: On an application for variation of an award of spousal support, the court must first find, under s. 17(4), that there has been a materialchange in the conditions, means, needs, or circumstances of either spouse (see Moge, (SCC), [1992] 3 S.C.R. 813, supra,at pp. 875-76, and Walker v.

Walker (1992), 12 B.C.A.C. 137, at pp. 141-42) and in making the order, the court must take intoconsideration that change. As with the variation of child support orders, this change must be material, and cannot be trivial orinsignificant. The factors enumerated give the court considerable discretion in determining whether a variation order is justified: see J.Payne, Payne on Divorce (4th ed. 1996), at p. 321.

Once this threshold is passed, the court must consider the four objectives of spousalsupport enumerated in s. 17(7) of the Divorce Act. [para. 20] [13] Having considered the law as I have detailed it, I am not satisfied that there has been a change in circumstances in this case. [14] Mr. Kordyban’s income remains much the same as it was prior to the divorce. Indeed, it is somewhat higher. He says that hisincome tax situation has changed because of differing income tax treatment for his Libyan income since the regime change but heprovides no details of this.

He says his taxes will now be higher but I have no way of knowing if this difference amounts to hundreds orthousands of dollars or is really minimal. Consequently I cannot find this constitutes a material change. Ms. Kordyban’s expenses aresaid to be lower than they were when she lived in the matrimonial home. That may be so, although I have no details of that. However,this was a change that was contemplated when the parties divorced. It is not a change in circumstances. [15] Many of the other changes pointed to by Mr.

Kordyban were also contemplated or, indeed, existed when the agreement wasentered into and the divorce judgment issued. The revolutionary war was underway in Libya at that time. Mr. Kordyban had fled thecountry already leaving all of his belongings and the status of his job in Libya was already tenuous. Thus the loss of his Libyan assetsand the debt incurred when he was unemployed were circumstances which must have been in his contemplation when the divorcejudgment issued. These are not changes. [16] In respect to the aid Mr.

Kordyban says he will give to Jason and Kayla to complete their educations, there is no evidence thatJason will be in school in September 2013. Ms. Kordyban says she doubts it and Mr. Kordyban provides no proof otherwise other thanhis bare assertion that Jason “intends” to enroll. Mr. Kordyban’s evidence is that Kayla intends to go to U Vic in 2014, a year from now.Thus, these costs are not a current cost to Mr. Kordyban. In any event Ms. Kordyban says that Kayla currently has only a Grade 9education and must upgrade. If she can do this, she must also gain admission to the University.

Kayla’s university costs are currentlyhypothetical. I note as well that these children are now 27 and 24 respectively. It is doubtful that they remain children of the marriage asthis term is used in the Divorce Act. Thus, these costs cannot be seen as financial consequences of raising or care of a child of themarriage as contemplated by s. 17(7)(

b) and, as such, cannot be a change of circumstances as contemplated by s. 17(4.1). The same istrue with respect to the aid Mr. Kordyban has given to his eldest daughter Jessica who is now 29. It is generous of Mr. Kordyban to aidhis adult children but it is not an obligation and cannot affect his obligation to pay the spousal support he agreed to. [17] The youngest daughter is a different matter of course. Megan has special needs and is unable to withdraw from dependency.At the time of the divorce, she was living with her mother. She now lives with Kayla. However, Megan has AISH and so has someincome. Mr.

Kordyban is very vague about the tutoring cost of $400 per month he says he incurs for Megan. He provides no proof thatthis expense has been incurred and gives no details about what Megan’s tutoring needs are. The change in Megan’s situation alone is notsufficient to trigger the operation of s. 17 and to require a variation in the spousal support payable. [18] The application is dismissed. Heard on the 28th day of August, 2013. Dated at the City of Edmonton, Alberta this 30th day of August, 2013. D.C. Read J.C.Q.B.A.

Appearances: A. Mackmetzky, student at law, Liddell Law Office for the Applicant Peter D. Spitz, Wallace & Spitz for the Respondent