Yakimitz v. Chorkwa, 2013 ABQB 85

Court of Queen ’ s Bench of Alberta Citation: Yakimitz v. Chorkwa, 2013 ABQB 85 Date: 20130205 Docket: 4803 158526 Registry: Edmonton Between: Robert Raymond Yakimitz Applicant - and - Tanya Nadine Chorkwa Respondent Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ Introduction [ 1 ] This is a chambers application made by Robert Raymond Yakimitz ("Mr. Yakimitz" or "Applicant") against the Respondent,

Tanya Nadine Chorkwa ("Ms. Chorkwa" or "Respondent") for reliefs which include: shared parenting of their child (the "Child"); exclusive possession of the matrimonial home by the Applicant; determination of Applicant's income for child support purpose; and distribution of the matrimonial property.

Summary of facts [ 2 ] Mr. Yakimitz and Ms. Chorkwa were married on June 6, 2009. The parties dispute the exact date of their separation: the Applicant claims October 1, 2011, while the Respondent says it's September 3, 2011. The only Child of the marriage was born on [...], 2011. [ 3 ] Mr. Yakimitz owns and operates his own farm from the matrimonial property site. He also owns and operates a trucking business. Ms.

Chorkwa works with a post-secondary institution in a full-time position. [ 4 ] Both parties have remained in their matrimonial home after the separation and the relationship between them has deteriorated to a high conflict point. Issues [ 5 ] The issues that are before me for determination are: i. What is the suitable parenting arrangement in the circumstance of this case? ii. Who is entitled to exclusive possession of the matrimonial property? iii. What is the Applicant's income for the purpose of setting child support? iv.

How should the matrimonial property be divided between the parties? [ 6 ] On October 26, 2012, the parties appeared before me and made submissions regarding the issues dealing with parenting arrangement and exclusive possession of the matrimonial property. After listening to both parties' arguments, an Order was issued to the following effects: (

i) The Applicant (Father) would have parenting time with the Child for 3 days of each week (i.e. Monday to Wednesday); (ii) The Respondent (Mother) would have parenting time with the Child for 2 days of each week (i.e. Thursday and Friday), including the weekends; (iii) The Applicant will pick the Child at the Mother's place at 7:15 a.m. on Mondays and the Respondent will pick the Child at the Father's place on Wednesdays at 7:00 p.m.;

(iv) The Applicant will have exclusive possession of the matrimonial home; the Respondent will commence moving out of the house on November 3, 2012 and complete that process on November 7, 2012; (

v) The Applicant must leave the matrimonial home until the Respondent moves out fully on November 7, 2012; and the Respondent is to pay the sum of $200 (two hundred) dollars to the Applicant for exclusive control of the matrimonial home during the period of evacuation. [ 7 ] The outstanding issues before me at this point relate to determining the Applicant's income for the purpose of setting child support and how the matrimonial property should be divided between the parties.

What is the Applicant's income for the purpose of child support payments? [ 8 ] On November 16, 2012, the Applicant's counsel advised this Court that discussions were ongoing between the parties in order to reach an agreement on the appropriate deemed guideline income for Mr. Yakimitz. Later, by a letter dated November 20, 2012 the Respondent's counsel informed the Court that it would be impossible to reach a settlement on the issue without an opportunity to review disclosures which are outstanding from Mr. Yakimitz and written submissions in support. On November 21, 2012, this Court requested that Mr.

Yakimitz make his supplementary written submission by December 31, 2012. [ 9 ] In the Applicant's written submission, he states that his total adjusted incomes are $69,697.86 in 2009; $32,649.23 in 2010 and $82,514.73 in 2011. He argues that while the average of these three years' incomes is $61,620.77, the income to be imputed on him by this Court should not exceed $76,000 per annum. Through a letter written by his counsel and dated January 21, 2013, Mr. Yakimitz acknowledges the existence of an Order issued on August 28, 2012 which required him to produce certain disclosures, including bank statements.

He concedes that the production of these bank statements may be compelled in a trial for the determination of income for support purposes. However, it is the financial statements prepared by an accountant that is determinative of child support and not the bank statements. Mr. Yakimitz argues that the list of exemptions is irrelevant. [ 10 ] On January 9, 2013, the Respondent reiterated that based on the disclosures and written submissions made so far by Mr.

Yakimitz, it remains impossible to her to determine the accuracy of the Applicant's financial statements as he has not fully complied with the Order issued on August 28, 2012 which had earlier required him to produce the balance of his disclosures by September 4, 2012. The Respondent identifies the outstanding disclosures as:

(1) Mr. Yakimitz's Corporate Income Tax Returns for 2010, 2011 and 2012;

(2) Complete Corporate Financial statements for the years ended August 31, 2011 and August 31, 2012;

(3) ATB Advantage Account #xxx41 statements for January 23, 2012, February 23, 2012, March 23, 2012 and April 23, 2012;

(4) ATB Unlimited Account #xxx300 statements from June 2011 through to December 2011 and from January 2012 to April 2012;

(5) ATB RSP Account for Contract #xxx116 statements from June 2011 through to December 2011 and from January 2012 to April 2012 and/or confirmation that this account is somehow related to the ATB RSP Investment Account #xxx409;

(6) ATB MasterCard statements for October 2011, November 2011, December 2011, January 2012 and February 2012;

(7) Most current ATB RSP Investment Account statement for Account #xxx409;

(8) Bank account statements and cancelled cheques for any bank accounts related to Mr. Yakimitz's company, either held in his

name and/or in the name of Palace Stations Holdings Ltd. from June 2011 to present;

(9) Credit card statements for any credit cards related to Mr. Yakimitz's company, either held in his name and/or in the name of Palace Stations Holdings Ltd. from June 2011 to present;

(10) Farm Credit Line of Credit statements from June 2011 to present; and

(11) List of Mr. Yakimitz's exemptions. [ 11 ] The Respondent, Ms. Chorkwa, submits that since Mr. Yakimitz has failed to comply with the existing disclosure Order, his imputed income for child support should be set at $150,000 pending the time he would fully comply with the August 28, 2012 Order and produced the documents listed in the preceding paragraph. Ms. Chorkwa indicates that her guideline income is $50,104. [ 12 ] From the chronology of developments in this matter, and by his own admission, it is clear to me that Mr.

Yakimitz is aware of the requirement and corresponding obligation on him to produce the disclosures ordered on August 28, 2012. He also agrees that majority of the outstanding disclosures may be compelled by the Respondent. In my opinion, it is contrarian to argue at once that the Applicant is not challenging the entitlement of the Respondent to compel the production of the bank statements at trial and in the same breath, contend that those compellable documents are not relevant. [ 13 ] Mr.

Yakimitz has failed to demonstrate the legal basis for his technical argument that, for the purpose of determining child support issues, it is the financial statements prepared by an accountant that are relevant, and not the bank statements themselves. No case law or statutory references were presented by the Applicant in support of his argument. In my view, Mr.

Yakimitz's position that the bank statements are only useful for the creation of financial statements is neither a reasonable basis nor a valid ground for his failure or refusal to disclose the relevant bank statements. [ 14 ] Similarly, the Applicant has failed to demonstrate the legal basis for his conclusory argument that the list of his exemptions is irrelevant. [ 15 ] It is indeed concerning that the Applicant has up till date failed to disclose those documents or statements which he also considers relevant from the standpoint of the Respondent's ability to compel their production.

This delay or outright refusal to produce the disclosures ordered on August 28, 2012 can no longer be justified, given the Applicant's acknowledgment of the existence of the Order and the relevance of the balance of disclosure. [ 16 ] In the result, based on the Applicant's failure to produce the outstanding disclosures, I will set the Applicant's imputed guideline income for the purpose of child support payments at $113,000.00, pending the satisfactory production of the balance of disclosures outlined in paragraph 10 above.

This sum reflects the average of the suggestions made by both parties as to what they consider appropriate for the Court to impute as the Applicant's guideline income. [ 17 ] Accordingly, at this stage the child support payments payable by Mr. Yakimitz should be calculated based on the Applicant's imputed income of $113,000.00 per annum and the Respondent's annual income of $50,104. [ 18 ] Leave is hereby granted to the Applicant to make any necessary application to adjust his ongoing child support payments upon compliance with the Order which requires him to produce the balance, outstanding disclosures.

How should the matrimonial property be divided between the parties? [ 19 ] This Court has been informed that both parties are currently exploring the possibility of reaching a settlement on the issue of the division of the matrimonial property.

[ 20 ] If parties are unsuccessful in negotiating a settlement regarding the division of matrimonial property, are unable to agree on costs or otherwise require further clarifications of this decision, they may arrange to speak to me within 30 days of the issue of this memorandum of decision. Heard on the 26 th day of October 2012. Dated at the City of Edmonton, Alberta this 4 th day of February, 2013. Donald Lee J.C.Q.B.A. Appearances: Norman W. Picard, Q.C. Barr Picard for the Applicant Curtis D. Ready Miller Boileau for the Respondent