Omonova v Omonov, 2014 ABQB 660

Court of Queen ’ s Bench of Alberta Citation: Omonova v Omonov, 2014 ABQB 660 Date: 20141029 Docket: 4803 153483 Registry: Edmonton Between: Oksana Matnazarovna Omonova Plaintiff - and - Tolibjon Solievich Omonov Defendant Corrected judgment: A corrigendum was issued on November 6, 2014; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Case Management Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________ I.

Introduction [ 1 ] The parties are former husband and wife. They have two children, an adult daughter, and a soon to be adult son. They have a history in the courts, some of which can be gleaned from Omonova v Omonov , 2013 ABQB 384 . An even shorter

summary is found here. [ 2 ] Previous contested family law proceedings and case management have not brought this couple litigation peace. In May 2014 Ms. Omonova asked that I be replaced as case management justice, because Mr. Omonov had made an application for another review of

section 7 child support guideline expenses. Ms. Omonova indicated she would not cooperate asserting that the courts have lost moral authority over her because they were letting her husband get away with dishonest conduct.

[ 3 ] She applied to the Associate Chief Justice [ACJ] to have her case management judge replaced with another. The ACJ declined; so she made that application to me. At the same time her ex-husband made other applications. This memorandum of my decision brings the case up to date but it is unlikely the litigation will end. Only the adulthood of the youngest son and the completion of his first-degree (if he elects to go to university) will end the litigation. The eldest daughter has now completed her first university degree and I have ended all

section 3 supports in the father’s favor for his contribution to her well-being because of the limited means of the mother and the age of the daughter. This memorandum deals with

Section 7 expenses for 2014 for the son and daughter. [ 4 ] Child-support (both child support guideline

section 3 and child support guideline

section 7) is ongoing for the son. II. Background [ 5 ] The parties, with two children, were divorced January 31 2011, after a 20 year marriage. The divorce judgment gave the mother custody of their son. The father was obliged to pay child support. [ 6 ] A matrimonial property ruling December 21, 2011 (oral reasons only) divided their matrimonial property. I also concluded that Ms. Omonova (having been in a long-term relationship with her husband, and having been disadvantaged by the marriage) was entitled to indefinite spousal support commencing January 1 2011.

At that time the son was living with his mother in the matrimonial home. The mother was obviously satisfied with my matrimonial property and related corollary relief ruling as she indicated to the ACJ that it was a blessing that I was assigned to her file. At that point, Mrs. Omonov had succeeded in remaining in the matrimonial home and was receiving both spousal and child support with a net cash flow in her favor. This changed when the relationship between mother and son deteriorated.

The son, feeling stifled by the mother’s personality, left the family home and went to live with his father. [ 7 ] The change of residence required that Ms. Omonova pay child support. I dealt with those items, obliging Ms. Omonova to make a contribution. Subsequently, Mr. Omonov applied for additional

section 7 child supports to assist with the university education of the adult daughter plus

section 7 child supports to assist with the cost of raising their son. After one such hearing, (to better use the resources of the court) I directed case management counsel, Sandra L. Schulz, QC, to conduct a Reference pursuant to rules 6.44-5, about

section 7 expenses. Ms. Schulz is no longer available, as the government recognized her considerable skill set and made her a Master of the Court of Queen’s Bench, a promotion from her role as case management counsel. She has been replaced by Brenda Kaminski, QC, who accepted the assignment from me to again conduct a similar reference about

section 3 and 7 expenses. [ 8 ] In my respectful view the decision by the provincial government to appoint competent case management counsel such as Ms. Kaminski and clothe them with a certain amount of judicial authority to review mathematical assessments is a major positive step toward streamlining in an effective way, who handles what work, in the courts. Far too much time is consumed by higher paid judges sorting out the minutia of numerous small accounts and checking them for accuracy, detail, and arithmetic. Ms. Kaminski prepared an excellent report analyzing the attempts by the husband to claim

section 7 expenses. She found that some of his attempts were repetitive of previous effort, and some were renewed effort to reargue expenses that had historically been disallowed. I will say more about Ms. Kaminski’s report, the contents of which I adopt, shortly. III. Issues Under Review [ 9 ] The issues which I am considering in this case management are the following: • Should I make a recommendation to the ACJ that the case management judge be replaced? • Should I make a formal order confirming that the custody of the child is now with the father? • Should I approve some or all of the proposed

section 7 expenses relating to both the daughter and son? • Should I adjust

section 3 guideline income for the purposes of child-support and the

section 7 ratio? IV. The Position of the Parties [ 10 ] The position of Ms. Omonova is that she is in dire economic straits. The amount of spousal support that I have ordered her ex- husband to pay is unreasonably low, and the child support and

section 7 expenses that I have ordered her to pay are unreasonably high. Second, that both her children (having turned their backs on her) should not expect financial support from her.

Her decision to cash out approximately $19,000 of an educational savings fund that she had established for her two children was made out of necessity because the court orders had left her impoverished. [ 11 ] As for her belief that she should get a new case management justice she indicates that the case management judge (me) has been too quick to accept the father’s statement of his income and his assets and that by failing to account for property in the former Soviet Union I have prejudiced her in her matrimonial property action. [ 12 ] The position of Mr.

Omonov is that I have been reluctant to properly direct his ex-wife to support her two children and in result he is bearing the burden disproportionately. He views the case management rulings to date as one-sided and favoring his ex-wife. He is currently raising two children - one a 17-year-old high school student who is into extracurricular sports activity, and an adult daughter who is just finally graduated. He denies factually that he has hidden assets, or income. V. Legal Analysis

1. The Change of Case Management Justice [ 13 ] The appointment of a case management justice in family law cases that have already been heard by the courts is restricted by policy and resource necessity. One case where it might be granted is a situation like this: where the animosity of the parties is so great that they will not let old issues resolved by the court rest. [ 14 ] It was interesting that Ms. Omonova appeared in court with her minister for moral support. Since the minister was the only member of the audience it was impossible for me not to make eye contact with the minister.

I noticed her smile when each of the parties assessed the case management judge as favoring the other side. The reality in case management is that not all of the issues will go one way or the other. The further reality is all of the issues are visceral to the litigants. It is a type of “damned if you do, and damned if you don’t” court process. If I overemphasize Ms. Omonova’s economic stresses I underestimate her ex-husband’s entitlement to be reasonably compensated for legitimate child support.

If I refuse to continue to go back and relitigate matrimonial property issues I am said to be letting the husband get away with theft. The reality is that I have been assigned this difficult case management file on a rotational basis, and that all of my colleagues have similar difficult case management files. [ 15 ] Time and resources will not allow the reassignment of a case management file simply because the litigants are unhappy with the result. Doubly so, when both litigants are unhappy; a reasonable inference exists that the judge may have got it right.

Further, both litigants have the right to appeal, while here neither ever availed themselves of that right. What they instead want to do is come to court and denigrate each other with a third-party referee listening in. [ 16 ] I have concluded that it would be inappropriate for me to cease my case management role in this case as that would simply require another judge to review years of litigation material to determine what is self-evident. The litigants here despise each other, and each wants to get the most economically out of the case and pay the least.

There are no profound decisions to be made in this case which are prejudiced by the case history. In fact it is the engagement of the case management judge over time that allows the decisions to be made in an expeditious way. [ 17 ] I decline to withdraw as case management judge. The parties have the opportunity to appeal this ruling but unless and until the Court of Appeal concludes that I have lost my objectivity I will remain as the case management judge dealing with the issues as they are presented. 2. Child Support a.

The Income of the Parties [ 18 ] A proper foundation for considering spousal support, the apportionment of

section 7 expenses as well child support for the infant child, and hardship allegations require a determination of the party’s income. Ms. Omonova requests that I impute her ex- husband’s income higher than his actual income. There is no foundation for that imputation. Mr. Omonov’s affidavit and his supporting documents reveal that he is in fact earning $65,013 per annum. This will be the income used in ongoing matters of support. I am not convinced that Mr. Omonov is earning any additional hidden, or under the table income. I accept his evidence on this point. Conversely Ms. Omonova is earning $45,119, or $41,319 net of spousal support. b. The

Section 3 Expenses [ 19 ] The eldest daughter graduated from university with her first-degree in the spring of 2014. As this was anticipated,

section 3 expenses payable by the mother to the father for her expired at that time. There are no further

section 3 expenses, payable by the mother to the father, in relation to the daughter. [ 20 ] The

section 3 expenses do continue for the son, and are to be based on that the mother’s income [net of spousal support] which I will set for 2015 at $41,319. This amount represents her 2013 income as revealed in the assessment from the Canada Revenue Agency in the spring of 2014. The net result of this is that effective January 1, 2015 the mother’s child support obligation in favor of the father for raising the son is set at $327 per month. [ 21 ] The father may deduct this from his obligation to pay spousal support but the mother must still include the total spousal support in her income for tax filing. c.

Section 7 Expenses to be Apportioned [ 22 ] Ms. Kaminski’s referee report represents a careful and thoughtful analysis of the apportionment of

section 7 expenses between the parties. The income ratio obliges Ms. Omonova to pay 42% and Mr. Omonov to pay 58%. [ 23 ] In the case of the

section 7 expenses for the now adult female child they consist basically of university tuition for the last term in 2014, plus some transportation cost to transport the daughter to Europe where she completed her last semester. Ms. Kaminski’s assessment is that these expenses exceed (for $2014) $3600. Taking into account the economic circumstances of both parents, and the daughter’s ability to contribute to her or university expense I therefore deal with the

section 7 expenses for the daughter in the following way. The semester taken in Europe did not overall increase the cost of a semester at the University of Alberta and therefore that expense is allowed plus sufficient travel expense to Europe to bring the total to $3600 for 2014. At this point, the $3600 cap on

section 7 expenses for the daughter which was established in prior case management applies. [ 24 ] In result Ms. Omonova is indebted to Mr. Omonov for $1728 representing 42% of the allowable

section 7 expenses.

[ 25 ] In relation to the younger son, I agree with the analysis of Ms. Kaminski confirming that $384 of school supplies and $31.46 of sports equipment constitutes the only allowable

section 7 expenses claimable. Ms. Omonova will pay 42% of $415.46, a sum of $174.49. [ 26 ] The total

section 7 obligation payable by Ms. Omonova to Mr. Omonov and due on January 1, 2015 is $1686.49. To assist Ms. Omonova to pay this amount in an orderly way she may pay $ $500 per month in each of the months of January, February, and March and $186.49 in April. All payments are due on the first day of the month. [ 27 ] In considering whether this burden is unduly harsh on Ms. Omonova, I specifically note that at the case management hearing Ms.

Omonova conceded that she had cashed in approximately $19,000 of a registered education savings plan [RESP] earmarked for her children and used that money to fund her own purposes. This was disappointing because the financial institution returned to the government their 25% grant and the only remaining element of the registered educational savings plan is the $900 of interest that has been earned. Had Ms. Omonova acted more responsibly her daughter could have received the benefit of this money, and the grant, to lift her burden in life. However because Ms.

Omonova is estranged from her children, she sacrificed the government grant which cannot now be recovered and took the education money which was not factored in the division of matrimonial property, to her own order. Her conduct in this regard is troubling. She was aware of how this would look, as she attempted to encourage here support person to leave the courtroom prior to discussing this lack of judgement. 3. The Obligation to Pay Spousal Support [ 28 ] Historically, I set spousal support at $275 per month on an indefinite basis.

During prior case management conferences this amount was increased to $400 per month. Both Mr. Omonov and Ms. Omonova’s income have increased roughly in the same proportion. There is no increase in spousal support contemplated by this order. Spousal support will remain at $400 per month and Mr. Omonov may set off against it the

section 3 child support payable of $327 per month starting January 1, 2015. Therefore the net spousal support payable by Mr. Omonov to Ms. Omonova is $73 per month; but Ms. Omonova is specifically directed by this judgment to declare $400 per month as spousal support in her income tax return. This is not a change however it was intimated that she may not have been doing that, so this is clarified. 4. Change of Custody [ 29 ] Ms. Omonova concedes that her son is now living with his father and that at 17 years of age the courts have little if any levers to force him back with his mother.

It is now time for the case management justice to legitimize this reality. Effective January 1, 2015 Mr. Omonov will be the sole guardian of their son and may apply for a passport and driver’s license in his name without the consent of Mrs. Omonova. Mrs. Omonova’s consent is not required for travel outside of the country. Ms. Omonova has proven that she will not cooperate in matters such as a driver’s license for her son or a passport. I handle this by removing completely her involvement and vesting this exclusively with Mr. Omonov. Mr. Omonov will have a duty to send to Ms.

Omonova at her last known address, a report on the son’s school progress and any significant medical history that may occur from time to time. There is no other obligation on the part of Mr. Omonov to encourage access. Mr. Omonov appears to have done a remarkable job raising this child over the last few years with minimal support and contribution from Mrs. Omonova. Ms. Omonova has by her conduct distanced herself from her two children and only time will heal this schism. 5. Tax Plan Filing [ 30 ] Mr. Omonov brought to the court’s attention that Ms.

Omonova has refused to cooperate in applying for a tax credit that is available to children born in 1996 or later. The tax refund may be based on an expense allowance of approximately $2200 and may result in a $500 credit to the custodial parent- the father. The court permits Mr. Omonov to apply for this credit, and if the Canada Revenue Agency allows this credit; to utilize the credit for supporting his child. Any consent required on the part of Mrs. Omonova to this tax planning application is dispensed with. 6.

Restriction on Future Applications and Access to the Courts [ 31 ] When this newest case management hearing was set, the parties appeared to have forgotten my earlier prohibition against uncontrolled applications to the court. The prohibition is therefore restated. If the parties have any ongoing disputes about

section 7 expenses they must first meet with the case management counsel to see if they can be resolved. Failing resolution, the case management counsel may acquire an order appointing her referee to create and produce a referee’s report. Neither party may apply to the courts for any other remedy whatsoever (this restriction does not prevent their right of appeal of this order) unless prior approval is obtained from the case management justice or the Associate Chief Justice. 7. Costs [ 32 ] Both parties want costs against the other. Neither party is awarded costs.

Costs are rarely awarded when parties are not represented by legal counsel. Both Mr. Omonov and Ms. Omonova took time from work to participate with the case management counsel and to appear in court. These are the costs that they must bear to have their independent day in court. Each application for costs is dismissed. VI. Judgment

Summary [ 33 ] The spousal support payable by Mr. Omonov to Ms. Omonova remains at $400 per month. The

section 3 child support for the

infant son only, payable by Ms. Omonova, is set at $327.00 per month, with the increase effective January 1, 2015. [ 34 ] All the

section 7 expenses that were reviewed by case management counsel in her reference have been reviewed and adjusted by this order. The total

section 7 obligation payable by Ms. Omonova to Mr. Omonov for the year 2014 and due on January 1, 2015 is $1686.49. To assist Ms. Omonova pay this amount in an orderly way she may pay $ $500 per month in each of the months of January, February, and March and $186.49 in April. All payments are due on the first day of the month. A previous case management order required that she pay

section 7 expenses at $50 per month; if there are any remaining

section 7 expenses due and payable by Mrs. Omonova to Mr. Omonov from my previous order they will continue to be paid at $50 per month in addition to the amount ordered herein. [ 35 ] Custody of the infant son shall be with the father. [ 36 ] Finally, any further litigation by this couple in the courts requires leave of either the Associate Chief Justice or the case management justice. Heard on the 3 rd day of October, 2014. Dated at the City of Edmonton, Alberta this 29 th day of October, 2014. A.W. Germain J.C.Q.B.A. Appearances: O.M. Omonova Appeared on her own behalf for the Plaintiff T.S.

Omonov Appeared on his own behalf for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of

The Honourable Mr. Justice A.W. Germain _______________________________________________________ Adjustments have been made to calculations in paras 28, 33 and 34. Various typographical errors have been corrected throughout the judgment.