Sopczak v Yoon, 2016 ABQB 290

Court of Queen ’ s Bench of Alberta Citation: Sopczak v Yoon, 2016 ABQB 290 Date: 20160520 Docket: 4803 146696 Registry: Edmonton Between: Peter Michael Sopczak Applicant - and - Gye-Sik Yoon Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Sopczak applies for various relief, the most important of which appears to be to cancel spousal support. He also applies to cancel all arrears of both child and spousal support, and to have primary parenting of the parties’ son. [ 2 ] Mr. Sopczak’s application to cancel spousal support is adjourned; the parties are to attend a case conference to determine how this part of the application shall proceed. [ 3 ] Mr. Sopczak’s application to cancel arrears of child and spousal support is allowed, in part.

[ 4 ] Mr. Sopczak’s application to change the parenting regime is denied. [ 5 ] Mr. Sopczak has established a material change of circumstance since the court last dealt substantively with spousal support: Ms. Yoon has purchased a residence in Edmonton. While Ms. Yoon may have a continuing claim for compensatory support, there is no current, comprehensive, information about her financial means, including how she was able to purchase a $450,000.00 home and whether that home offers opportunities for earning income.

The parties are therefore required to attend a case conference meeting to determine how this part of the application should proceed. [ 6 ] Mr. Sopczak has established a material change of circumstance since the court last dealt substantively with child support: his income has decreased materially. Therefore, his child support obligations for 2014 and 2015 are reduced to correspond to the actual income earned, and his arrears are reduced accordingly. [ 7 ] Mr.

Sopczak has not established any material change of circumstance since the court last ordered a parenting regime; the current regime will therefore remain in place. 1. Background [ 8 ] The parties, who married in 2002 and divorced in 2008 have one son. The parties have been in court almost continuously since their separation, dealing with matters including jurisdiction, access to property, financial disclosure and a variety of other, somewhat peripheral, matters. In addition, the parties have brought repeated parenting applications. Since 2008, there have been at least 25 court appearances. [ 9 ] Mr.

Sopczak is unrepresented on this application; the court has not been able to obtain coherent information from him. [ 10 ] In July 2008, when he was represented, Mr. Sopczak sent this court’s standard notice to disclose to Ms. Yoon. The notice indicated that an application respecting compliance with the notice would be heard in court on September 9, 2008 if compliance had not been made prior to that date. The court’s procedure card indicated that, on September 9, 2008, Mr. Sopczak’s application was adjourned sine die , on consent.

I have been unable to find in the court’s record of these proceedings any comprehensive financial disclosure from Ms. Yoon since that date. [ 11 ] In March 2010, Ms. Yoon filed an affidavit in which she swore: When we were in Korea I was working as a skilled corporate bookkeeper in the industrial stationary and paper industry for over 10 years. Before I met [Mr. Sopczak] I had a car and household items. I had also managed to save some money and, with the help of my parents, I purchased an investment condominium in 1996.

Also, in Korea the practice of private lending is prevalent and an accepted investment practice. Before I married Mr. Sopczak I had built up a small private lending practice and from this endeavour I was earning as much as my day-to-day bookkeeping wage. [ 12 ] In May 2010, the court ordered Mr.

Sopczak to pay $2,000.00 per month in combined spousal and child support and ordered the dispute on to trial. [ 13 ] In July 2010, this court issued a consent order in which the father’s income was set at $36,000.00 yearly, the mother’s at nil, and which ordered the father to pay $296.00 in child support and $1,704.00 per month in spousal support. Although this was a consent order, one can’t help but notice that the effect of the order was that Mr. Sopczak was left with approximately $550.00 to live on ($3,000 minus 15% tax = $2,550 minus $300 child support = $2,250 minus $1,700 = $550).

On its own, this may not be too surprising since Mr. Sopczak may have been living with his mother at the time and required relatively little income per month, but, given the evidence at trial a few months later that Mr. Sopczak was paying off matrimonial debt at the rate of approximately $600.00 per month, the consent is, on the face of it, surprising. [ 14 ] In December 2010, after a five day trial, Browne J. issued reasons granting a divorce judgment and corollary relief. The spousal support provisions of the resulting order, which was filed in February 2011, are: 13. While [Ms.

Yoon] is resident in Canada, [Mr. Sopczak] shall pay indefinite ongoing spousal support to [Ms. Yoon] in the amount of $1700 per month on the first day of each month until further order of this Court. 14. If [Ms. Yoon] relocates outside of Canada, [Mr. Sopczak] shall pay spousal support to [Ms. Yoon] in the amount of: a. $1700 per month payable on the first day of each month for 12 months; b. At the expiration of 12 months after the relocation of [Ms. Yoon], the amount shall decrease to $1,200 per month payable on the first of each month for the next 6 months; c.

At the expiration of 18 months after the relocation of [Ms. Yoon], the support shall decrease to $700 per month payable on the first of each month for the next 6 months; d. At the expiration of 24 months after the relocation of [Ms. Yoon], support decrease to $200 per month payable on the first of each month for the next 6 months at which time no further support is payable while [Ms. Yoon] is located outside of Canada. [ 15 ] In her oral reasons for judgment, a transcript of which was prepared for Mr.

Sopczak’s appeal of the decision, the trial judge said the following about the issue of spousal support: . . . but to incur the move of the family, the father had to sponsor the mother for Canadian citizenship. That sponsorship involved making commitments to support her financially, and I think it is the landed immigrant status documents from -- landed immigrant status was

approved as of December 5th, 2007, and the sponsorship was required to December 5th, 2010, in terms of what is required from the Department of Immigration. From one of the exhibits I took out the sponsorship obligations, and that is the document that the father signed when he asked that the mother be allowed to come to Canada, and eventually she would be able to apply for citizenship.

I am quoting from I think it is the letter that the sponsor receives: Your obligations during this entire length of time are to provide your family member with: an adequate place to live; appropriate utilities. . .; adequate food, clothing, household supplies, and personal requirements for day-to-day living; dental care, eye care and other health services not provided by public health; financial assistance to ensure financial support is not required from any federal or provincial assistance program. This includes [welfare or] social assistance from any municipal program.

The father failed to support the mother, leaving her in desperate financial straits. She has asked for rides on many occasions from friends, gone to the food bank a number of times, asked for help from immigration services, has dealt with social services, used clothing. Furniture is often given to her by a friend. She has stayed at the women's shelter. . . . During the course of the trial there were significant references to the mother owning a condominium in South Korea.

It is clear from the evidence that that was purchased before the marriage, before the couple met, and was purchased perhaps with a bit of help from her parents but with her own money or family money. That property was never lived in by the parties. It never was brought into the marriage. It simply was an investment by the wife, or by the mother. As I said, no money was invested by the couple in that property.

It was certainly an annoyance of the father as the couple struggled with their financial issues, and he thought that that asset should be brought into the marriage and cashed in so that there would be some help for the financial struggles that the couple were having. . . . The sponsorship obligation creates a legal obligation for support that can and should be translated into spousal and child support payments. In this case the mother should receive compensatory and needs-based spousal support as she gave up a great deal in Korea to make a life in Canada, which, unfortunately, did not work to her advantage.

She now may return to Korea and have the challenge of putting her life back together there. . . . I am presuming that the wife will return and her plans will allow her to successfully integrate back into life in Korea. If that is the case, then spousal support can gradually decrease. If the wife stays in Canada, then her spousal support payments will continue as set out in the previous order granted until she is able to support herself, which may be many, many years.

Another factor that we need to consider when we are talking about spousal support and child support: The costs of access that I discussed already; that is, at least two trips a year to Canada will indeed be significant for the father, and it is proper to decrease his child support payments in consideration of those costs on the basis of undue hardship,

section 10 of the Child Support Guidelines. . . . ln the event that the mother stays in Canada, the spousal support payments will continue indefinitely as set out in the order noted above. If the mother goes to Korea, the spousal support payments will be reduced as follows. One year from the date that she leaves Canada, the payments will remain as set out in the previous order of $1,700 a month.

Thereafter they will be reduced by $500 for the next six months, reduced another $500 for the next six months, and then they will stop entirely. [ 16 ] The February 2011 order stated that for the year preceding May 1, 2011, Mr. Sopczak’s income was set at $36,000 and, for the period starting June 1, 2011 and thereafter, Mr. Sopczak’s income was determined to be $60,000. [ 17 ] In another

section of her oral reasons, the trial judge allowed Ms. Yoon to relocate to South Korea with the child of the marriage. [ 18 ] Mr. Sopczak took some steps to appeal the trial decision, but, despite having been granted an extension of time with respect to the filing of an appeal, he never perfected his appeal. [ 19 ] In March 2011, Ms. Yoon left Canada for Korea, with the child of the marriage. In July 2011, Mr Sopczak visited Ms. Yoon and the child; he then returned to Canada on July 25. Mr. Sopczak then came back to Korea on August 9, 2011, and remained there until August 15, 2011. [ 20 ] In February 2012, Ms.

Yoon and the child of the marriage had a short visit with Mr. Sopczak in Canada. [ 21 ] At the end of 2012, Mr. Sopczak asked Ms. Yoon and the parties’ child to visit Edmonton; they arrived on December 24, 2012. Mr. Sopczak’s failure, during the course of that visit, to return the child to Ms. Yoon resulted in Ms. Yoon obtaining a court order for the return of the child. Ms. Yoon and the child have since remained in Canada. [ 22 ] In 2013, when both parties were represented, this court issued an order based on income for Mr. Sopczak of $60,000.00 per annum and for Ms. Yoon of $0. The order went on to state: 5.

There shall be cancellation and termination of $20,000.00 from the arrears owing by [Mr. Sopczak] to [Ms. Yoon] for child support and spousal support. 6. [Mr. Sopczak] shall pay spousal support to [Ms. Yoon] in the amount of $1,700.00 per month commencing on January 1, 2014

and continuing on the 1st day of each and every month thereafter until further order of the court, provided that [Ms. Yoon and the parties' child] continue to reside in Edmonton, Alberta. If [Ms. Yoon] returns to reside in South Korea, then all spousal support payable by [Mr. Sopczak] shall terminate immediately. 7. [Mr. Sopczak] shall pay child support to [Ms. Yoon] in the amount of $519.00 per month commencing on January 1, 2014 and continuing on the 1st of each and every month thereafter for as long as the child is a dependent child of the marriage as defined by the Divorce Act (Canada) . 8. [Mr.

Sopczak] shall pay $200.00 per month on the remaining arrears of child support and spousal support commencing on January 1, 2014 and continuing on the 1st day of each and every month thereafter until fully paid to [Ms. Yoon]. [ 23 ] In her oral reasons, the special chambers judge found that there had been no material change of circumstances relating to parenting or ongoing child or spousal support since the Divorce Judgment and Corollary Relief Order granted by this court in December, 2010. However, the court cancelled $20,000.00 from the arrears owing by Mr.

Sopczak to his former wife for child and spousal support, without allotting an amount to each, on the basis that Mr. Sopczak had not been earning the $60,000 per year which he had anticipated earning. During the course of the hearing, the court heard that Ms.

Yoon did not have a house, that she was staying with friends, that she did not have a car. [ 24 ] During her oral reasons for decision on that application, the special chambers judge said the following with respect to spousal support: If the mother is here in Canada, the evidence seems to be very, very clear that she does not have the language skills to be able to support herself, and the father is to be doing so and – he is not. He never has and he still is not. . . . Justice Browne dealt with [spousal support] as far as your client’s obligations are concerned.

She said that if the mother does not work in Korea, that is her problem, because the spousal support obligations are decreasing and are gone after a couple of years; whereas if the mother lives in Canada, spousal support is supposed to be paid and is not being paid. . . . . . . we will come back to the arrears in a moment. But in terms of a go-forward situation, [Mr. Sopczak] is now in a situation where he is making the income that he told Justice Browne he would. . . . [In dealing with Mr.

Sopczak’s proposal to reduced spousal support to $1,000 and then to reduce that to $600 a month and then eventually terminate that] that again is very inconsistent with Justice Browne’s findings . . . I mean, this is about the time that Justice Browne felt that Ms. Yoon could become self-supporting in Korea, but not the time that she could become self-supporting in Canada. Justice Browne thought that would take a very long time, and the evidence I have is that she is not ready to do it yet, and, you know, I would not be cutting that off quickly.

You know, I would certainly be willing to hear something about what kinds of plans there are, but I would not be cutting it off quickly, certainly not in the next six months or the next year or anything like that. It takes time. In other situations, a five-year marriage might not give rise to such a long-lasting obligation to pay support, but in a situation where someone has moved from a different country and has cultural and language problems and has a child as well that needs support, . . . I mean all of this shows a very, very strong entitlement on Ms.

Yoon’s part to compensatory support, and that is what Justice Browne ordered. [In dealing with Mr. Sopczak’s argument that “maybe something in the $1200 range for spousal maintenance would be more reasonable. It’s something that Mr. Sopczak will be able to afford. It would also give Ms. Yoon the income that she needs. . . . [Ms. Yoon] has not made, even a year later here, not made much effort, if at all, to find some type of employment when we’re talking about Alberta, even for somebody with limited skills, but she does have . . . skills as a bookkeeper.

She has had some certain skills that she had in Korea] the chambers judge said: Those are the types of jobs, types of careers where the English skills are particularly important. If might be different if she was in a service industry, but if she is doing something like bookkeeping, obviously she is going to need very good English skills. . . . . . . you know, I do think there is a point that this should not go on forever. For her own reasons, for [the child’s] reasons, for all sorts of reasons, she should be looking at something to achieve independence.

That is a goal of the Divorce Act as well and something she should be looking to do. But if she is not sure right now whether she is here long term, I am not really sure what I can do at this point.

It seems to me the sensible thing to do is just leave Justice Browne’s order in and then, once we know what her plans are, whether she is staying here long term or not, maybe she needs some extra support in order to get some education and maybe that could be worked out in terms of . . . a more time-limited support with support while she is being educated, and then the support coming to an end gradually after that, . . . But I just think it is too early to be doing it now. I do not have any facts, any plans, any specifics . . to base it on.

So I think the appropriate thing right now is that if she is staying here, the spousal support order stays the same. [ 25 ] While Ms. Yoon is now taking English language lessons, we still do not have any long range plan from her. It is also to be noted that this court has never made an order with respect to s. 7 expenses for the child of the marriage. [ 26 ] On November 19, 2015, on an interim, without prejudice, basis when both parties were unrepresented, this court ordered Mr. Sopczak to pay his former wife $1,000.00 in spousal support and adjourned Mr. Sopczak’s application to vary support to a special

chambers hearing on May 3, 2016. From a reading of the entire file, it appears that all of Mr. Sopczak’s applications, including cancellation of arrears and parenting, were also to be included in the adjournment order. [ 27 ] At this hearing, Mr. Sopczak advised that, since the court last dealt comprehensively with spousal support, Ms. Yoon had purchased a house in Edmonton for approximately $450,000.00. He complains that she is not using that property to earn income as, for example, by renting a suite in the basement or by renting rooms to Korean students. [ 28 ] Ms.

Yoon has filed an affidavit in which she swears: - she has leased her Korean condominium which has a value of approximately Cdn $240,000.00 for the equivalent of Cdn$170,000.00 under a jeonsee agreement and that, pursuant to that agreement, she must return the entire $170,000.00 to the tenant when the tenancy agreement terminates.

She has not indicated when the agreement began, or when it terminates; - she used $100,000.00 of the rental she obtained as a down payment on the home she purchased; - there is no separate, and no legal, suite in the basement of her home; - she has not explained how she was able to acquire a mortgage for the home in Edmonton in light of the fact that she has no employment income and that Mr. Sopczak is greatly in arrears of paying the support ordered by the court. [ 29 ] Ms. Yoon has not filed copies of her Canadian and Korean bank accounts and of her Canadian and Korean charge accounts.

She has not provided any information about the private banking firm which she owns, or owned, in Korea. [ 30 ] Mr. Sopczak has not filed any current information about the private companies in which he has more than a 1% interest. He asserts, however, that he owns no real property and no assets of more than nominal value. 2. Cancellation of spousal support [ 31 ] The last time this court substantively dealt with spousal support was in December 2013. This court’s task is therefore to determine if Mr.

Sopczak has established that there has been a material change of circumstance since then. [ 32 ] The evidence that Ms. Yoon has, since December 2013, purchased a home in Edmonton is clearly a material change of circumstance. In an affidavit sworn in November 2015, and filed in April 2016, Ms. Yoon states that her total monthly budget of $4,275.00 includes a mortgage payment of $1,625.00 per month; her total budget is for an amount much above even the $2,000.00 per month Mr. Sopczak had been required to pay and, of course, very much higher than the amount Mr. Sopczak actually did pay.

There is no explanation from Ms. Yoon concerning how she manages to make the payments reported in her budget. While Ms. Yoon’s financial circumstances may still include an inability to speak English well enough to obtain employment commensurate with her training and experience, considerable financial resources are available to her. There is not, however, in the evidence which she has filed in relation to this application, a complete picture of her financial means. Ms.

Yoon has not explained, for example, why she leased her condominium on a jeonse rather than on a wolse basis especially as it is not clear when, or if, Ms. Yoon intends to return to Korea or why she will not rent out rooms in her Edmonton residence. [ 33 ] As the court noted in December 2013, on the basis of the facts which can be determined from the materials before the court, Ms.

Yoon appears to be entitled to compensatory support for the financial advantages she gave up by leaving Korea for Canada; those advantages include the employment and business incomes she earned in Korea and appear to come within the meaning of s. 15.2 (

a) of the Divorce Act . (It goes without saying that Mr. Sopczak’s immigration sponsorship obligations have long since expired.) Although it has not been made explicit on this application, it is possible that the $1,700.00 per month spousal support order which has been a feature of this litigation virtually since the outset of the proceedings was made in reliance on the Spousal Support Advisory Guidelines. I observe that, based on Mr. Sopczak’s 2015 income and the child support based on that obligation, and on Ms.

Yoon’s total lack of income, the advisory guidelines may suggest a range of between $931.00 and $1,164.00 per month. I have no information from either of the parties about what the advisory guidelines propose as a range of support in the actual circumstances here. However, in addition to a spouse’s needs, Parliament also indicates, in s. 15.2(4) of the Act, that a court should consider the means of each of the spouses, including the recipient spouse. There is no information before the court about Ms. Yoon’s financial means, including assets in Korea; so far, Ms.

Yoon has indicated basically that she is not receiving any income from employment in Canada. There is no reason why any assets she may have in Korea are not also taken into account in deciding the issue of spousal support. Finally, Parliament has also stated that where the ability of the paying spouse is limited, the obligation to pay child support will prevail over the obligation to pay spousal support. On this point, Mr. Sopczak has not presented any useful evidence. [ 34 ] In

summary then, the court is unable to make a determination of the issue of spousal support, both cancellation and ongoing, on the materials filed in support of this application. The court adjourns Mr. Sopczak’s application for this relief to a case conference before this court to determine whether the spousal support issues can be determined by a further application or whether they will require a trial. Because Mr. Sopczak is unrepresented, I ask counsel for Ms. Yoon to contact my assistant to obtain possible dates for a case conference and to discuss with Mr.

Sopczak which of those dates is most mutually convenient. In the meantime, Mr. Sopczak will continue to pay the $1,000.00 per month in spousal support most recently ordered, and there will be a stay of execution on any spousal support arrears. 3. Cancellation of child and spousal support arrears [ 35 ] This court last dealt with arrears in December, 2013. Therefore, this court’s inquiry must begin with an inquiry as to whether there has been a material change of circumstance since January 2014.

[ 36 ] Mr. Sopczak has filed a copy of his CRA notice of assessment for 2014 stating that his line 150 income for that year was $40,764.00. Mr. Sopchak’s 2015 tax return shows line 150 income for that year of $47,503.75. [ 37 ] Ms. Yoon claims that Mr. Sopczak is deliberately under-unemployed. In 2010, when a similar argument was made to the trial judge, the trial judge said that there was insufficient evidence at trial to justify such a conclusion. A similar result applies here. [ 38 ] The difference in Mr.

Sopczak’s income for 2014 and 2015 and the amount that was projected in 2013 is sufficiently wide to constitute a material change of circumstance. Moreover, Ms. Yoon has known throughout that the original $60,000.00 guideline income for Mr. Sopczak was based not on his then most recent income, but on what Mr. Sopczak expected his income to be in the future. Therefore, the fact that he did not earn what he hoped to earn will presumably not come as a surprise to her. [ 39 ] On the basis of the lower incomes, Mr.

Sopczak’s child support obligations would have been reduced to $322.00 per month in 2014 and $382.00 per month in 2015. This resulted in an overcharge of Mr. Sopczak of a total of $ 4,008.00 (519 minus 322 = 197 x 12 = 2,364) plus (519 minus 282 = 137 x 12 = 1,644). [ 40 ] Mr. Sopchak’s total child support arrears should therefore be reduced by $ 4,008.00 and also by any interest or other penalty charges incurred as a result of failing to pay anything more than the monthly amounts set out above.

No other child support arrears will be cancelled. [ 41 ] As indicated above, the issue of spousal support, including spousal support arrears, has been adjourned. 4. Parenting [ 42 ] Mr. Sopczak has again applied for a change of parenting. He has not established any material change in the factors which the court would take into account in determining what is in the best interests of the child of the marriage. His application under this heading is therefore denied. 5. Costs [ 43 ] Because there has been divided success on this application, each party will bear their own costs of the application.

Heard on the 3 rd day of May, 2016. Dated at the City of Edmonton, Alberta this 20 th day of May, 2016. J.B. Veit J.C.Q.B.A. Appearances: Mr. Sopczak, Applicant on his own behalf Hamish J.D. Henderson for the Respondent, Ms. Yoon