Uba v Uba, 2016 ABQB 19

Court of Queen ’ s Bench of Alberta Citation: Uba v Uba, 2016 ABQB 19 Date: 20160108 Docket: 4803 158166 Registry: Edmonton Between: Lara Ann Uba Plaintiff - and - Ifeanyi Benn Uba Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] This court must address three remaining disputes: how should Mr. Uba’s share of the matrimonial property be distributed – direct to him or to Ms. Uba as part payment of Mr. Uba’s outstanding child support obligation; because Mr.

Uba’s income for purposes of the consent child support order is imputed income, how should the support recalculation program be addressed; how should Mr. Uba be required to pay his past child support debt. 1. Mr. Uba’s share of matrimonial property should be paid out to him: this is not one of the circumstances where property should be used as a basis for imputing income for purposes of child support. Although some, or perhaps all, of Mr. Uba’s matrimonial property award may be recovered by Legal Aid that is not a reason to deny Mr. Uba his property. [ 2 ] Mr.

Uba has agreed that, for child support purposes, his income should be imputed at $25,000.00. However, the facts are

that Mr. Uba is not currently employed. Indeed, as Ms. Uba acknowledges, MEP has not been able to take any steps to enforce Mr. Uba’s existing child support obligations because Mr. Uba has no assets or income against which those obligations can be enforced. Although Mr. Uba has professional qualifications in both health care and business administration, he is not currently employed and has, indeed, exhausted his employment insurance benefits. Prior to separation, Mr.

Uba’s work history was similarly checkered: in 2008, the line 150 income on his tax return was a little in excess of $84,000.00; in 2009, it was approximately $18,000.00; in 2010, it was $4,000.00; and, in 2011, the year of separation, it was $28,000. When, post-separation, Mr. Uba’s well-paying job was transferred to Calgary, he left that employment because his children were in Edmonton. There is no basis here for assuming that Mr. Uba will not, in the future, return to meaningful employment and will not then pay his child support obligations. [ 3 ] Child support obligations are based on income.

Property can be taken into account in determining income under s. 19(1)(

e) of the Guidelines: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: . . . (

e) the spouse's property is not reasonably utilized to generate income; [ 4 ] Mr. Uba’s share of the parties’ matrimonial property under the parties’ equalization settlement is approximately $4,000.00. There is simply no basis here for treating Mr. Uba’s $4,000.00 property settlement as income. [ 5 ] Because Mr. Uba has been represented in these proceedings by Legal Aid, he has apparently contracted to provide re- imbursement to Legal Aid from any property award he may receive. Ms.

Uba – who has similarly been represented by Legal Aid and has a similar repayment obligation - argues that it would be better to give Mr. Uba’s property benefit to her for the benefit of the children rather than to Legal Aid. With respect, for two reasons I disagree. First, as stated above, there is no principled reason to consider this property as income for child support purposes. Second, sound public policy undergirds the Legal Aid program; an important part of the program’s service is legal support to parents who are attempting to advance their children’s interests; that service should not be undermined.

Although individual children’s interests are important, they do not over-ride every situation in which they are present. [ 6 ] Mr. Uba’s argument that it would be unfair, or perhaps even unconstitutional, to leave him with no property is similarly maladroit. First, the property settlement leaves him with property in Nigeria and, second, he has no constitutional right to property; he only has a constitutional right not to have his property removed from him without due process. 2.

Of the two MEP-approved forms of recalculation program options, the order should use the form which allows the parties to access the recalculation program when that becomes possible. [ 7 ] Since March, 2015, Alberta’s Child Support Recalculation Program Regulation , Alta. Reg. 287/2009, as amended, has imposed a requirement in Alberta for every child support order to include a reference to the support recalculation program: Child support orders - mandatory clauses 1.1(1) For the purposes of

section 55.12 of the Act, the court shall include one of the following mandatory clauses in every child support order: (

a) This Order may be recalculated by the Alberta Child Support Recalculation Program (“the Recalculation Program”) based on its anniversary date if eligible for recalculation and if the Recalculation Program determines recalculation is permissible and appropriate pursuant to the Family Law Act and regulations. Either party may apply to register with the Recalculation Program at 8 th Floor, 10365- 97 Street, Edmonton, Alberta T5J 3W7, telephone 780-401-1111, (website:www.recalculation.alberta.ca). Should either party fail to comply with the income disclosure requirements of the Recalculation Program, then the income of that party may be automatically deemed to have increased as set out in

section 55.51 of the Family Law Act. (

b) This Order shall not be recalculated by the Alberta Child Support Recalculation Program.

(2) If an order made after March 1, 2015 fails to include one of the mandatory clauses set out in subsection (1), the order is deemed to include subsection (1)(a). [ 8 ] At the moment, Mr. Uba’s income is imputed. It appears, therefore, that at the moment the recalculation program will not accept the child support order which these parties have consented to into the recalculation program. However, in the future, Mr.

Uba’s child support obligation may become eligible for annual recalculation; participation in the program obviously saves the parties time, trouble and expense and is in the best interests of the children involved. There may be some situations in which a court, as opposed to the parties, would not want the parties to participate in the recalculation program, but this is certainly not one of them. As soon as the parties can participate in the recalculation program, they should. Therefore, the appropriate order to include in the parties’ formal settlement is the first choice offered in the regulation. 3.

This court is not in a position to determine how Mr. Uba’s existing unpaid child support obligations should be repaid [ 9 ] The parties have agreed that Mr. Uba will pay to Ms. Uba $6,049.00 in child support “arrears”. However, a portion of that total should presumably be described as a retroactive award. Where a court imposes a retroactive award, that court should determine how the award should fairly be paid: DBS v SRG 2006 SCC 37 , at para. 116 .

The parties will have to go back to the court which imposed the retroactive award to determine how that award should be paid. [ 10 ] With respect to what can properly be characterized as “arrears”, e.g. unpaid obligations for ongoing support made by court order, MEP has the authority to determine how the arrears should be paid: Maintenance Enforcement Regulation , Alta. Reg. 2/1986, as

amended. [ 11 ] In the result, this court does not have the jurisdiction to determine how Mr. Uba’s existing unpaid child support obligations should be repaid. Heard on the 5 th day of January, 2016. Dated at the City of Edmonton, Alberta this 8 th day of January, 2016. J.B. Veit J.C.Q.B.A. Appearances: Sara Dargatz, Family Law Office, Legal Aid Alberta for Ms. Uba Miranda Moore, Moore Law for Mr. Uba