Albavera v. Alarcon, 2013 ABQB 519

Court of Queen ’ s Bench of Alberta Citation: Albavera v. Alarcon, 2013 ABQB 519 Date: 20130917 Docket: 4803 155959 Registry: Edmonton Between: Rafael Morales Albavera Plaintiff - and - Ana Cany Gonzalez Alarcon Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _________________________________________ ______________ [ 1 ] The Applicant mother is seeking to relocate with her children to their native country of Mexico because she has received a letter from Immigration Canada indicating that as of the 30 th of June, 2013 her status in Canada is no longer valid.

Although the mother has made an application to extend her stay in Canada temporarily based on humanitarian and compassionate grounds, the mother is presently without status in this country, cannot work to support herself or her children, is not entitled to receive social assistance or any social services program, and could be deported from Canada on short notice at any time. [ 2 ] Accordingly she is also seeking spousal support, along with retroactive child support and

Section 7 expenses due largely to her inability to work any longer in Canada. The father replies that he already gave the mother a house in Mexico, and he cannot afford to make monthly payments while he too adjusts his temporary immigration status here.

[3] Both parties and the children are originally from Mexico, and they were able to enter Canada on work permits throughsponsorship of the Defendant husband’s employer. The husband continues to work apparently for the same employer, and he has appliedfor permanent resident status in Canada. He has included the children on his application, but it will be according to the husband, at least18 months before his application is dealt with.

In the mean time he submits that the children should remain in Canada where they havebeen for approximately the last five years in their best interests. [4] The mother submits that the children should return with her to Mexico where they are originally from, since she has alwaysbeen the primary caregiver of the children. As long as the children do not turn 18 years of age, they can be sponsored back or included inthe father’s application to remain in Canada permanently. [5] The parties were married in July 1999 and separated in January 2011. The children are 10 and 16 ½ years of age.

The partieswere divorced by order of this Court on June 4, 2012, the relevant terms of which state: 1. The Plaintiff and the Defendant have joint custody of the children of the marriage with primary care to the Defendant. 2.

Commencing March 4, 2012, the children shall reside as follows: a. 2 weeks with the Defendant and 1 week with the Plaintiff commencing March 18, 2012, with the exchange to occur on Sunday at7:00 p.m.unless the exchange falls on the long weekend in which case the exchange shall occur on Monday at 7:00 p.m. b. while the children are in the care of the Defendant for 2 weeks, the Plaintiff shall have the children on Tuesdays and Thursdaysfrom after school to 7:30 to 8:00 p.m.; subject to his work schedule; c. while the children are in the care of the Plaintiff for 1 week, the Defendant shall have the children on Thursday from after schooluntil 7:30 to 8:00 p.m. 3.

Either parent shall have unlimited telephone contact with the children during the other parent’s parenting time. 4. Neither the Plaintiff nor the Defendant shall leave Alberta with the children without a written consent of the other parent or CourtOrder. 5. The Plaintiff shall pay the Defendant $720.00 per month for child support payable on the first day each month, commencingApril 1, 2012. 6. Any

Section 7 expenses, including the school fees, shall not to be incurred without a written agreement and shall be paidproportionately to the parties’ incomes, current shares being 61% by the Plaintiff and 39% by the Defendant. 7, Spousal support shall be reserved. 8.

Each party shall provide the other party with a complete copy of his or her income tax return and any notices of assessment and reassessment issued to him or her by the Canada Customs and Revenue Agency on an annual basis, on or before June 30th of each year,as long as there is a child of the marriage as defined by the Divorce Act. [Underlining added] [6] With respect to that Divorce Judgment and Corollary Relief Order in addition her being allowed to take the children back toMexico, the Applicant is seeking that the Respondent’s access be reduced to visitations with the children whenever he is in Mexico, andthe children could visit their father in Canada during the summer when they are off from school.

Analysis [7] The leading mobility case in Canada is Gordon v Goertz, (SCC), 1996 2 S.C.R. 27, and paragraphs 49 and50 set out the law as follows: 49 The law can be summarized as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: • (

a) the existing custody arrangement and relationship between the child and the custodial parent; • (

b) the existing access arrangement and the relationship between the child and the access parent; • (

c) the desirability of maximizing contact between the child and both parents; • (

d) the views of the child; • (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; • (

f) disruption to the child of a change in custody; • (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community.

The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [ 8 ] In an Affidavit filed December 20, 2011 with respect to parenting time, the mother made a series of serious allegations with respect to the conduct of the father in this matter regarding events that led up to their eventual divorce. The mother deposed that she was threatened because she was in Canada as a temporary foreign worker by her husband who warned her that he would call immigration authorities and essentially have her removed from Canada.

She alleges that the husband attempted to sabotage her employment knowing that her job was not classified as “skilled” employment by Canadian Immigration Standards, even though both she and her husband are employed by the same company.

The mother alleges that the husband told her Supervisor in the company that she was speaking poorly of them, and as a result she was then forced to take a significant pay cut and sell her sewing machine to the company, at which time she was required to purchase her own sewing machine. [ 9 ] She also deposes that she felt that she had no choice but to comply with the company’s demands in order to stay in Canada.

She deposes that prior to the divorce in Canada, the parties returned to Mexico in 2010 as a family for a visit, where the husband indicated that he had already “paid off” a lawyer and a judge so that he could have his divorce from her completed within 3 days. The husband then took the children to visit his sister, three days passed, and the husband did not return with the children. On the third day, the wife alleges that the husband told her that he would include her in his application for permanent residency in Canada only if she gave up all her rights to the children, which she refused to do.

She alleges that the husband continued to emphasize his connections in Mexico to power, and that he intimidated not only herself but her family as well. [ 10 ] She also describes in considerable detail the husband’s controlling attitude, the severe domestic violence she suffered consisting of physical abuse and mental cruelty, and his difficult relationship with his children throughout their marriage. [ 11 ] In response the husband deposes that the oldest child has already moved in with him recently, and that the wife has continued to work illegally receiving money “under the table” in Canada notwithstanding her present precarious immigration status.

He also argues that the children will be returned by the mother to a town in Mexico that is notoriously dangerous, and that all of this is clearly not in the best interests of the children. To the best of his ability as a self-represented individual, I get the impression that he denies most of the allegations concerning abuse and bad behaviour, but it does appear that he has re-married since the divorce. He also seems to deny having anything to do with her upcoming deportation from Canada.

Conclusion – Mobility [ 12 ] Ideally if time permitted there could have been a trial on this issue as opposed mobility cases are often difficult. The circumstances however in this case did not afford such a luxury given the mother could be deported from Canada on short notice, or without notice. Notwithstanding the father’s concerns, it is highly unlikely that the mother would subject herself and her child to a dangerous living environment in Mexico whatever her immigration status is here.

[13] This application presents a number of other challenges and issues. I am dealing with a self-represented father for whomSpanish is his first language, and whose English is not very good. The only family law lawyer that he is aware of that can speak Englishand Spanish is not able to see him until after this application was heard.

While the husband would like more time to deal with this mattertoo, the husband never formally applied for an adjournment of this application heard in Special Family Law Chambers. [14] With respect to the 16 ½ year old child of the marriage, irrespective of whose version of events is considered, this child hasalready gone to live primarily with the father. Her Student Visa is tied to the father’s work permit and is valid until October 8, 2014, atwhich time the father’s application for permanent residence will have been decided upon.

In these circumstances it seems that the oldestchild has already made her choice and wishes to remain in Canada where she has been for the past five years. [15] The youngest child is 10 years of age and remains with the mother who has cared for this child at all times. While it is notdesirable to separate the younger brother from his older sister, in this exigent set of circumstances, it is reasonable to allow the mother toreturn to Mexico with her 10 year old son if she is deported.

There is no independent evidence that the town to which the mother intendsto return to, and where her family lives, is dangerous and full of drug dealers, as alleged by the father. The 10 year old son is not oldenough, unlike his older sister, to decide where he wants to live. This couple built a house in this Mexican town before they came toCanada on land owned by the wife’s parents. In fact, the wife deposes that her parents worked to build the house which consists of threebedrooms, two full bathrooms, a laundry room, living room and balcony as well as a kitchen, dining room, and a half bathroomdownstairs.

It is not as if the youngest child will be unaccustomed to Mexico when he returns to what appears to be a comfortableexistence. [16] Accordingly clause 4 of the Divorce Order is removed, and the mother can relocate with her 10 year old son to Mexico. Thefather can visit the son whenever he is in Mexico, and the son can visit the father at the father’s expense in Canada during his summer orother vacation. Conclusion – Ongoing and Retroactive Support Payments [17] Ongoing child support will be based on each party having the primary residential care of one child each.

The father’s annualincome is $57,228 and the mother’s is zero. [18] With respect to retroactive child support and

Section 7 expenses, D.B.S. v. S.R.G, 2006 SCC 37 , 2006 S.C.J 37 saysas follows at paragraphs 121, 124, 127 and 130: 121 Choosing the date of effective notice as a default option avoids this pitfall. By "effective notice", I am referring to any indicationby the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic bebroached.

Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certaintybecomes less compelling. ... 124 The date when increased support should have been paid, however, will sometimes be a more appropriate date from which theretroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once thepayor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was beingmet.

This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholdsinformation. Not disclosing a material change in circumstances -- including an increase in income that one would expect to alter theamount of child support payable -- is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptivedate of retroactivity back to the time when circumstances changed materially.

A payor parent cannot use his/her informational advantageto justify his/her deficient child support payments. … 127 While the Divorce Act provides courts with discretion in deciding whether or not a child support award should be ordered, thesame cannot be said for the quantum of this award. Both s. 15.1(3) for original orders, and s. 17(6.1) for variation orders, stipulate that acourt making an order "shall do so in accordance with the applicable guidelines".

Therefore, so long as the date of retroactivity is notprior to May 1, 1997 -- i.e., when the Guidelines came into force -- the Guidelines must be followed in determining the quantum ofsupport owed. The Parentage and Maintenance Act, on the other hand, does not fetter courts' discretion in determining the quantum ofchild support awards: see s. 18. Courts awarding retroactive support pursuant to this statute will have greater discretion in tailoring theaward to the circumstances. … 130 A second way courts can affect the quantum of retroactive awards is by altering the time period that the retroactive awardcaptures.

While I stated above that the date of effective notice should be chosen as a general rule, this will not always yield a fair result.For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate toexclude this period of unreasonable delay from the calculation of the award.

Unless the statutory scheme clearly directs another outcome,a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case. [19] It is apparent that the father’s income is greater than that anticipated at the time of the Divorce, and he was slow in disclosingthis increase. The mother’s income has dropped over that time, from $25,685.06 in 2012, to zero since June 30, 2013.

It appears that thefather was at least indirectly responsible for this drop in income [20] I conclude that the mother is entitled to retroactive child support and retroactive

Section 7 expenses based on a recalculation

of both parties proportionate share to January 1, 2012 as follows: Retroactive

section 3 child support Year: 2012 (January to March) Respondent’s income for 2012: $55,400 Respondent paid: $750 per month Respondent should have paid according to guidelines: $783 per month Difference of : $33 per month Shortfall for the period: $33 X 3 = $99 Year: 2012 (April to December) Respondent’s income for 2012: $55,400 Respondent paid: $720 per month Respondent should have paid according to guidelines: $783 per month Difference of : $63 per month Shortfall for the period: $63 X 9 = $567 Total retroactive payment for 2012 = $666.00 Year 2013: January to August Respondent’s income for 2013: $57,228 Respondent paid: $720 per month Respondent should have paid according to guidelines: $809 Difference of: $89 per month Shortfall for the period: $89 X 8 =$712 Total retroactive payment for 2013= $712 Total retroactive payment for both years = $666 + $712 = $1,378 Retroactive

Section 7 expenses for 2011 School fees payable for 2011 – 50/50 split (agreement between the parties) Total paid by Applicant - $1,833.75 Total paid by respondent: $0 Amount being sought by Applicant- $916.88 Retroactive

Section 7 expenses for 2012

Medical Expenses being sought by Applicant for 2012 - $58.69 Proportionate sharing of school fees for 2012 Applicant’s income for 2012 -$55,400 Respondent’s income for 2012 - $25,685.06 Total/Combined income of parties= $81,085.06 Proportionate share requirement – Applicant 32% and Respondent 68% Total school fees for 2012: $2,013.74 Respondent paid 61% of school fees i.e. $1,228.38 Applicant paid 39% i.e. $785.36 Respondent should have paid 68% i.e. $1,369.34 Applicant should have paid 32% i.e. $644.40 Applicant seeking difference form Respondent in amount of $140.96 Total retroactive

section 7 expenses being sought by Applicant = $916.88+$58.69+$140.96= $1,116.53 Total retroactive

section 3 and

section 7 expenses being sought by mother = $1,378 + $1,116.53 = $2,494.53 [ 21 ] As for spousal support, I conclude that the house in Mexico was never meant to offset any claim for spousal support as alleged by the father. This is especially since the wife receives virtually no income from this house, and also because the house is built on her parent’s property. The wife’s parents are still owed money by the father for the house construction and expenses.

I conclude that given the mother’s situation of having virtually no income either from employment or from the Mexican house, given this is an 11 ½ year marriage, and given that her husband brought her to Canada, he must take some responsibility for at least part of her present predicament here. I conclude that the mother is entitled to spousal support. Given the father’s current income of over $57,000 a year, the Spousal Support Advisory Guidelines for a 11 ½ year marriage suggest a range between $1,000.00 and $1,500.00 per month.

I conclude that monthly spousal support of $1,000.00 be paid, retroactive to July 1, 2013 given his possible involvement at that time in having his wife’s immigration status cancelled. Heard on the 10 th day of September, 2013. Dated at the City of Edmonton, Alberta this 16 th day of September, 2013 . Donald Lee J.C.Q.B.A. Appearances:

Crystal Lawrence Family Law Office for the Defendant/Applicant Rafael Morales Albavera Plaintiff/Respondent