CLW v SVW, 2016 ABQB 546

Court of Queen’s Bench of Alberta Citation: CLW v SVW, 2016 ABQB 546 Date: 20161003 Docket: 4801 136452 Registry: Calgary Between: CLW also known as CLM Plaintiff/Respondent - and - SVW Defendant/Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.C.

Hawco _______________________________________________________ [ 1 ] The Defendant, SVW, brought an application on November 13, 2015 for an order terminating child support and staying enforcement of all actions by the Department of Maintenance Enforcement. [ 2 ] There were two children of the marriage, DW born in 1992 and AW, born in 1993. [ 3 ] DW turned 18 in 2010. However, he did attend school for a number of months in 2011 and was living with his mother at the time, as was AW. [ 4 ] Pursuant to a Consent Order granted by Justice J.

Strekaf on July 31 st , 2008, SVW was required, and indeed, agreed, to pay the sum of $5,000.00 per month by way of child support, on a without prejudice basis. That amount was agreed upon because the Defendant’s income at that time was undetermined as he was undergoing an audit. The amount was based upon an average of his past three years, which would have been approximately $400,000.00 a year. [ 5 ] SVW’s reported income for 2007 was $746,000.00. He claims that he never did have an income of that amount in 2007, but

that was the figure taken into consideration in determining what amount of support he would pay, together with his income for 2005 in the amount of $263,000.00 and his income in 2006 which was $210,000.00. It was agreed between the parties that his income for 2004, some $1.3 million, should not be taken into consideration because it would unduly influence an average. [ 6 ] In 2008 SVW reported an income of $25,000.00. This same amount was reported as his income in 2009. In 2010 his income was just over $5,000.00.

He attributes these fluctuations to a company that he owned, Cub Engineering, which closed in 2011 due to financial difficulties. [ 7 ] In April of 2011 he was re-assessed by the Canada Revenue Agency for 2007 and his income considered to be $11,600.00. No reasons were evident in all of his evidence as to why this took place, nor was there any explanation with respect to such a significant reduction. [ 8 ] In 2011 he began working for Cenovus Energy. His income in 2011 was $141,800.00.

In 2012 he earned $269,000.00, in 2013 he earned $311,000.00 and in 2014 he earned $306,000.00. [ 9 ] SVW claims that he was unaware of the Decree for Divorce that I, coincidentally, signed on December 2 nd , 2010. He states that he never did receive a copy of that order and was not aware, until Maintenance Enforcement contacted him in 2015, and advised him that he was in arrears some $140,000.00, that his support payments had never been reduced. [ 10 ] According to the order of Justice Strekaf, the amount of his support was set at $5,000.00 per month.

That could be changed either upon the parties reaching a new agreement or the matter proceeding to arbitration before a named arbitrator, Ms. Elaine Seifert.

Neither happened. [ 11 ] CLW’s evidence was that she could not remember specifically forwarding him a copy of the Decree Nisi, but believed that he had received one because she had some organization working for her and thought they had served him or believed that she would have included an addressed envelope for his Decree Nisi when she obtained the documents from the court house in December of 2010. [ 12 ] In any event, no formal application was taken out by SVW for a reduction in his support payments until November 13, 2015. [ 13 ] SVW’s payments were irregular in 2008 and 2009 but to the extent that he was only $20,000.00 short (or, in arrears) by the end of 2009.

By the end of 2010 he was another $45,000.00 in arrears. [ 14 ] In 2011 he was another $50,000.00 in arrears and appeared to unilaterally reduce his payments, when made, to $1,900.00 per month. [ 15 ] In 2012 he reduced his payments further to $1,200.00 per month and in 2013, began paying $1,700.00 per month on a regular basis continuing through to the end of 2014. [ 16 ] It was SVW’s position that his son DW should have ceased being considered a child of the marriage in 2010, when he graduated from high school, and that he should not have had to pay for his son AW after 2013.

So he decided he would reduce his support without any agreement, or even consultation. [ 17 ] On July 28, 2015 Maintenance Enforcement wrote to SVW advising him he was in arrears in the amount of $140,000.00. He says he was not aware that he was to pay $5,000 per month until he received that notice. That was not true as he had obtained a certified copy of the Decree in early July 2015 so that he could remarry. How long he was aware of the terms of the Decree is not really important. He was aware of the Strekaf, J order. [ 18 ] On September 1, 2015, Justice A.D.

Macleod granted a 90 day stay of enforcement on all MEP proceedings “Provided the Applicant pays the Respondent $2,500.00 per month commencing October 1 st and continuing for every month thereafter until further order”. [ 19 ] These payments have, it appears, been paid for 2015, at least in part. [ 20 ] On February 16, 2016 SVW brought an application to terminate his requirement to pay ongoing child support because the children were no longer children of the marriage and had not been for some time.

He further sought an order varying the amount of child support retroactively to July 31, 2008, to an amount commensurate with his income in each year since 2008. [ 21 ] SVW also sought a declaration that he would be subject to undue hardship if he were required to pay the amount presently ordered, including arrears. [ 22 ] SVW’s position is that the Strekaf, J order of July, 2008 was a without prejudice order and was only to be temporary, until his true income was known.

He says he understood that once his 2008 income was accurately determined, the amount of support was to be changed to reflect his actual income. [ 23 ] In fact, as I have already said, the order stated that once SVW’s income was determined, the parties were to enter into an agreement or attend a mediation/arbitration with Ms.

Seifert for a final determination of his income. [ 24 ] It also provided that the amount of $5,000.00 would be paid until further agreement of the parties or further order of this Court. [ 25 ] My order of December 2, 2010 maintained the $5,000.00 per month and further stated that DW was to be considered a child of the marriage until the age of 21 years. That, apparently, was based upon an affidavit in support of the Decree, filed by CLW. [ 26 ] SVW maintains that CLW agreed that DW ceased to be a child of the marriage in either 2010 or 2011. During 2011, DW

attended school for some six months. [ 27 ] SVW further maintains that CLW has agreed that there was no further child support due for AW after April of 2013. I saw no evidence from CLW to that effect. Children of the Marriage [ 28 ] I have no recollection, other than what I have read in the affidavit in support of the Decree, why the Decree contained a provision that DW was to be considered a child of the marriage until he reached age 21. I assume that there was some concern that DW would not be self-supporting until he was 21. That did not turn out to be true. He became fairly independent after high school.

He did take courses in 2011 and did remain living with his mother until the end of 2011. I am satisfied that he remained a child of the marriage until the end of 2011. [ 29 ] With respect to AW, CLW seeks to have AW declared to be still a child of the marriage on the basis that, although he is now almost 23 years of age, he continues to live with her because he is unable to live by himself as a result of some mental health problems that he has been suffering from for some time. He was diagnosed with depression and anxiety by Dr. Habeeb Tunde Ali in November of 2012. Dr.

Ali’s letter of May 5, 2016 states: The above named (CLW) has had her son AW as a dependent on mental health treatment via myself since November 2012 and his condition is ongoing and likely for the next months or years. [ 30 ] Dr. Salim Hamid, a psychiatrist, had written to Dr. Ali on November 27, 2015, who had referred AW to his office. Part of Dr. Hamid’s letter stated: AW was born in Edmonton. His biological father died of overdose when he was very young. He mentioned that he did reasonably well in school and he went to university but did not know what to do so he dropped out.

He has worked a couple of odd jobs; however he has not worked for about a year. He uses marijuana on a regular basis. He describes to have low energy and says that he feels sad. [ 31 ] Dr. Hamid closed by saying: I have an opinion that AW is suffering from some constitutional difficulties in temperament and personality, which appear to be rather dependant and avoidant in nature. Differential diagnosis also is autism spectrum disorder previously called Asperger’s Syndrome.

I suggested him to stop Prozac as he does not find it to be effective and I suggested that he try Wellbutrin 150 mg for a week and then increase it to 300 mg. I have not booked a further appointment to see him. However family to call me for an appointment if needed. As far as I am aware there has been no further meeting between AW and Dr. Hamid. [ 32 ] Dr. Hamid did provide the following suggestions: (

a) attend Bridging the Gap, a program for people with mental health issues; (

b) start volunteering in order to assist AW to engage with others; (

c) change sleep patterns – AW had been sleeping excessively for at least 12 - 18 hours per day. He was awake all night and sleeping during the day; (

d) apply to Alberta Works for a six month period in order to allow AW time to adjust to his diagnosis and determine whether he could become capable of joining the workforce; (

e) start anti-depressant Wellbutrin. [ 33 ] According to CLW, AW was advised that his condition was too severe to attend the Bridging the Gap program. The intake worker, Ms. Amy Cruz Silot suggested that AW contact a program called The Launch Into Life Program. AW is, apparently, pursuing this; he is not taking the Wellbutrin that Dr. Hamid recommended as it was ineffective. Dr. Ali has prescribed a new anti-depressant which costs approximately $400.00 per month. [ 34 ] It would seem that AW has difficulty keeping appointments with a counsellor that he was seeing in Cochrane due to his sleeping patterns.

He has not seen this counsellor since November of 2015. [ 35 ] His mother says that he cannot stay alone for long periods as he stops taking his medication, becomes more reclusive and house bound and doesn’t eat properly. However, it is clear that AW has stayed alone for up to 5 weeks at a time. He apparently can look after himself when he has to.

He sometimes has difficulty with taking his medication on a regular basis and has lapses with his hygiene. [ 36 ] Quite frankly, if, as it appears, AW is a regular marijuana user and sleeps some 12 – 18 hours a day as his mother says, then there seems to be a distinct lack of motivation and self-desire. It also appears to me, with great respect to CLW who certainly appears to be a devoted mother, that she appears to be an “enabler”, either consciously or unconsciously.

AW appears to be quite happy to continue to be looked after by his mother. [ 37 ] Certainly while AW was still attempting to pursue university, which was until February of 2013, he would still have been considered to have been a child of the marriage. For the rest of the year, AW did not work at all. In 2014 he worked part-time at Boston Pizza and worked for three or so months with a company known as All Span Building Systems.

According to his mother, while working at Boston Pizza he had an episode of some type and was not able to function and again an episode of some type and not able to function at All Span Building Systems. He has not worked in 2014 since August of that year and has not worked in 2015.

[38] This work and activity history seems somewhat at odds with Dr.

Hamid’s description of AW as having done “reasonably wellin school” and going to university but “dropping out because he did not know what to do.” [39] The criteria to be considered to be a child of the marriage under the Divorce Act is whether the child was over the age ofmajority “but unable by reason of illness, disability or other cause to withdraw from his or her parents’ charge or to obtain thenecessaries of life.” [40] After 2013, he appears to have been quite happy to continue to be looked after by his mother. [41] I will give AW the benefit of the need to be under his mother’s care and charge for the rest of 2013.

But there comes a timewhen he must take responsibility for himself. I am not satisfied that he was unable to withdraw from his mother’s care from 2014onward.

Support Owing [42] If I read the Supreme Court’s decision in DPS v SRG, 2006 SCC 37 , 2006 2 SCR 231 properly, a recipient seeingretroactive support will not be entitled to go back more than three years, unless the payor has engaged in blameworthy conduct. [43] It seems to me that the flipside of that is, or should be, that a payor seeking to reduce his support should not be able to do sofor any more than the three years prior to his application, if he has not engaged in blameworthy conduct. [44] What concerns me here is that SVW was the only person who knew what his income was throughout the years after theparties separated in 2008.

He took no steps to either alert CLW, who was relying upon the consent order of 2008 and my order of 2010,that his income had somehow been “changed” from $746,000 in 2007 to $11,000 in 2011 by the CRA. [45] What she was aware of was that SVW unilaterally reduced what he had been paying ($5,000 per month) on a somewhatregular basis, in 2009 to very little in 2010 and to $1,900 per month in 2011. Even that amount was paid on an irregular basis. He thenreduced his payments to $1,200 per month in 2012. In 2013 he started paying $1,700 per month on a regular basis, but with no apparentauthority or agreement.

In May of 2013 MEP stopped showing any support being due. [46] It took five years from the date of my order (the Decree) and seven years from Justice Strekaf’s order before SVW made anymove whatsoever to reduce the amount of the support payments he was required to pay. [47] I am not aware of any legitimate reason why SVW failed to either come to an agreement with CLW or request that the mattergo to arbitration, as had been agreed upon. [48] In the end result, SVW remained obligated to pay CLW the sum of $5000 per month from the date of Justice Strekaf’s orderuntil the end of 2011 when I have found that the oldest son ceased to be a child of the marriage.

From that point on, his support would bereduced to whatever the guideline amount was for 2012 and 2013 for one child with the payor having an income, in this case a deemedincome, of $400,000 per year. Whatever that amount is, is payable and was payable by SVW up until the end of 2013. Any amounts paidby SVW beyond the end of 2013 will be credited to the amounts owing by him.

Hardship [49] SVW has made an application to have the amount of his support reduced because for him to pay the amount under theguidelines, he would suffer undue hardship. [50] Section 10(2) of the guidelines set forth the circumstances that may cause a spouse to suffer undue hardship which include: (

a) that the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouse and theirchildren prior to the separation or to earn a living; (

b) that the spouse has unusually high expenses in relation to exercising access to a child; (

c) that the spouse has a legal duty under a judgment order written separation to support any person; (

d) that the spouse has a legal duty to support a child, other than a child of the marriage who is: i. under the age of majority. [51] Under s 10(3) if I were to determine that there would be undue hardship to him, I must still deny this application if I am of theopinion that his household would have a higher standard of living than CLW’s taking into consideration the amount of support. [52] It is my view and decision that SVW does not qualify for a reduction of the amount of child support for a number of reasons: 1.

I am not satisfied that any of the circumstances set forth in s 10(2) are present; SVW has stated that he has an obligation to twoother dependent children that he must support and four other children from a previous marriage that he has supported. With respect toany of the other children, he has produced no order with respect to any of his claimed obligations; 2. The application was not made until after his obligation to pay the child support ceased; and 3. There is no evidence before me of the relative standards between the two households.

[ 53 ] In conclusion, SVW’s claim for reduction of the child support is dismissed, as is his claim for a declaration of undue hardship. CLW is entitled to her costs. Heard on the 19 th day of September, 2016. Dated at the City of Calgary, Alberta this 3 rd day of October, 2016. G.C. Hawco J.C.Q.B.A. Appearances: CLW also known as CLM Plaintiff/Respondent - Self-Represented Litigant Kevin Kurtz for the Defendant/Applicant