Kriaski v Kriaski, 2015 ABQB 730

Court of Queen ’ s Bench of Alberta Citation: Kriaski v Kriaski, 2015 ABQB 730 Date: 20151117 Docket: 4814 003825 Registry: St. Paul Between: Don Eddie Kriaski Plaintiff (Applicant) - and - Christine Marie Kriaski Defendant (Respondent) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ [ 1 ] This matter came before me as a special chambers application involving issues of shared parenting, exchange times, amending a T-5 issued to Ms.

Kriaski, retroactive child support, s 7 expenses incurred and ongoing child support. I issued an order relating to everything in issue except the matters of retroactive and ongoing child support and s 7 expenses. Those matters were adjourned to allow the parties to provide me with more information about the income of Mr. Kriaski and about s 7 expenses incurred. I

have now been given that information and therefore I am in a positon to give the parties my decision on these issues. [ 2 ] I commence by reiterating that while this was a special chambers hearing, it remains an application for interim relief. As such, where there is a factual dispute between the parties, I cannot provide a definitive answer on the subject. All I can do is make as fair an interim order as possible and leave the parties to the usual remedy of trial or settlement.

As well, it is my opinion that in its effort to accommodate family litigants, the Court has allowed the family bar to use the interim application process as a kind of mini-trial, trying to resolve all issues between the parties even where the issues are highly contentious and even where there are disputes relative to the facts. As well, it does not seem to matter that there is really no pressing urgency for an interim order.

As a result, the Court is often called on to make interim orders respecting retroactive child support, retroactive spousal support, paid s 7 expenses, matrimonial property divisions and the like. [ 3 ] Chambers was never designed for the purpose it is now asked to serve and worse, litigants unsatisfied with chambers decisions will return again and again for variation on the thin excuse of a change in circumstances. [ 4 ] This practice has to stop.

Our system cannot continue to throw resources at family law litigation without regard to the costs and without regard to the needs of the other users of the justice system. In my view, anecdotal evidence supports the conclusion that 50% of a Judge’s average working day is taken up with family law matters. In my view, although I am but one voice, when it comes to the area of family law litigation, the problem is not lack of access to justice, the problem is over access. [ 5 ] I recognize that there are many initiatives ongoing to address these and other matters.

However, for myself, I think refusing to deal with matters that really do not need to be resolved in advance of trial will serve to reduce the overuse of our resources. Insofar as the Kriaskis are concerned that means this: [ 6 ] Firstly, there is no reason for me to deal with the parties’ past or retroactive s 7 expenses claim and so I won’t. The parties can pursue their respective positions on that subject at trial. If these expenses were grossly underpaid or exceptionally disproportionate and by a significant amount, I might have made a broad adjustment to level the field.

That is not the case here. [ 7 ] Secondly, as to retroactive child support, the same situation applies. Particularly, since Mr. Kriaski’s income is hotly contested. Additionally, much of the evidence presented to support one position or the other will require the assistance of an accounting professional to properly assess the information. The best I could do at this stage is guess and in doing so I am unlikely to be completely fair. [ 8 ] On the other hand, even if Mr. Kriaski’s evidence is accurate, he should plainly have been paying something to support his children and he has not.

In my view, therefore, there is a need to do something to make the present situation more equitable. Accordingly, I award Ms. Kriaski $10,000 in child support arrears payable forthwith. This is an interim award and is therefore without prejudice to whatever conclusion a trial judge may reach on this subject. Furthermore, this is simply a very rough attempt to make the status quo more equitable. [ 9 ] Thirdly, on the subject of ongoing child support, I do not as yet have the financial information for the 2014 tax year for the small closely held business which supports Mr. Kriaski.

However, based on the information before me, it appears that while together the parties drew approximately $125,000 from the corporation in wages and dividends and they also benefitted from some expenses paid by the corporation. Recognizing that both parties worked for the corporation, although Ms. Kriaski worked progressively less, I think it is reasonable to allocate 2/3 of that sum as Mr. Kriaski’s effective income. Therefore, $83,000 is allocated as pre-tax income to Mr. Kriaski.

Then, accounting for the benefit accruing to him from the corporation’s payment of expenses, and using his evidence on the subject, $7,000 annually should be added to his income. Therefore, I impute income to Mr. Kriaski on a go forward basis at $90,000 per year. [ 10 ] I fix Ms. Kriaski’s go forward income at $57,000 per year. [ 11 ] As a result, Mr. Kriaski will pay the net child support as calculated by the Child Support Guidelines to Ms. Kriaski as and from November 1, 2015. Neither party may make any further interim application to vary their incomes as I have fixed them.

Specifically, there shall be no recalculation prior to trial or settlement of this action. [ 12 ] Finally on this subject, my decisions and directions respecting the parties respective incomes is without prejudice any decision the trial judge may make on the subject. [ 13 ] Fourthly, in relation to costs. There is absolutely no justification to order solicitor-client costs on an interim application. If Ms. Kriaski wishes to pursue that claim, she can bring it before the trial judge. [ 14 ] In my view, two issues drove this application: parenting time and child support.

The parenting time was relatively easily resolved and had it been the only issue there likely would not have been a need for an interim application. However, there is no doubt that Mr. Kriaski should have been paying child support and his continuing failure to do so resulted in this application. On the other hand, the positon taken by Ms. Kriaski was unreasonable and she is partly to blame for the expenses the parties incurred seeking my assistance. Therefore, having regard to those circumstances, I award Ms. Kriaski $2,000 plus disbursements in an attempt to find a fair balance.

Those costs are payable forthwith. Again, this costs Order cannot and is not intended to prevent the trial judge from making any costs order or she concludes is appropriate in all of these circumstances. Heard on the 4 th day of June, 2015. Dated at the Town of St. Paul, Alberta this 17 th day of November, 2015.

T.D. Clackson J.C.Q.B.A. Appearances: Darlene St. Jean Hajduk Gibbs for the Plaintiff (Applicant) Joely Patrick Todd & Drake LLP for the Defendant (Respondent)