Sopczak v Yoon, 2016 ABQB 564

Court of Queen’s Bench of Alberta Citation: Sopczak v Yoon, 2016 ABQB 564 Date: 20161007 Docket: 4803 146696 Registry: Edmonton Between: Peter Michael Sopczak Applicant - and - Gye-Sik Yoon Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] I heard an application from Mr. Sopczak in special chambers on May 3, 2016, and issued a decision on May 20, 2016: 2016 ABQB 290 .

In that decision, I concluded that I was unable to make a decision on the issue of spousal support and adjourned the application to a case conference which was to decide, amongst other matters, whether the support issues could be determined at a further special chambers application or whether they had to be decided at a trial. [ 2 ] For the reasons which I will set out hereunder, I have now concluded that the dispute on spousal support must be heard at a trial.

a) Between now and trial; Ongoing child support; Ongoing spousal support; Suspension of enforcement of support and maintenance arrears if ongoing obligations met [ 3 ] As part of the adjourned case conference held on October 4, 2016, I ordered the parties to find out the first available dates for a one or two day trial in this matter. The earliest dates available are in the spring of 2017. Therefore, there will be a considerable delay in finalizing the issue of spousal support. In those circumstances, the interim reduction of spousal support issued in November 2015, which reduced Mr.

Sopczak’s spousal support obligation from $1,700.00 per month to $1,000.00 per month, which order has obviously continued to date, must continue until trial.

[ 4 ] It is not clear at this case conference which amount of the total arrears owing by Mr. Sopczak is due to arrears of spousal support. However, because of Mr. Sopczak’s consistent concern for the welfare of his son as represented by his volunteering to increase the amount of child support he is currently paying, one might assume that the largest part, if not the entirety, of the arrears are for spousal support, which Mr. Sopczak has always contested, and not for child support or what MEP refers to as maintenance. [ 5 ] Since the issue of spousal support is what must be determined and since Mr.

Sopczak has established that there has been a material change of circumstance since the 2013 decision of this court maintaining the amount of spousal support awarded at trial, it is appropriate to order a conditional suspension of the enforcement of Mr. Sopczak’s arrears by any agency, provincial or federal, until the disposition of the spousal support issue. [ 6 ] The condition which is the pre-requisite for the suspension of enforcement process including garnishment and attaching of income tax rebates is that Mr.

Sokczak shall, beginning November 1, 2016 and on the first day of every month until the trial decision issues, make the child support payment for one child set by the Federal Child Support Guidelines for a parent earning $50,000.00 gross, i.e. approximately $405.00 per month but to be properly calculated and inserted into an order, plus the interim spousal support payment of $1,000.00. If Mr.

Sopczak fails to make the total monthly child and spousal support payments as required, both MEP and any federal agency are entitled to resume the enforcement of arrears. [ 7 ] In other words, if, starting November 1, 2016, Mr. Sopczak makes a total monthly payment to MEP of approximately $1,405.00, his wages will not be garnisheed and he will personally receive any income tax rebate owed to him. It is in Mr.

Sopczak’s interest for him to file a copy of this decision with MEP as soon as he receives it, even if it may take some time for the actual order which summarizes this decision to take a little longer to process.

b) Update of Mr. Sopczak’s disclosure; Update of Ms. Yoon’s disclosure ; Deadline December 15, 2016 [ 8 ] In order to maximize the benefit of a trial, both parties must complete their financial disclosure and ensure that it remains current to the date of trial. In order to allow each party to reasonably prepare for trial, all financial disclosure from each party must be completed by December 15, 2016. [ 9 ] For both parties, this means that they should each have a current report of arrears from MEP as of the date of trial.

For both parties, they should attempt to obtain from MEP a breakdown of arrears between child support or maintenance and spousal support, with separate attribution of interest and fees to each type of support. [ 10 ] In order to assist the trial judge, the parties should also be prepared to inform the trial judge about MEP’s garnishment policy, i.e. what proportion of a debtor’s salary is garnisheed. [ 11 ] For Mr.

Sopczak, completing his financial disclosure means that he must update his income disclosure, including pay stubs from his driving employment and receipts related to his income as a driving instructor, and that he must keep that disclosure current to the date of trial. He must also provide a personal budget and a current deposition, by way of oath or solemn declaration, of assets and liabilities. [ 12 ] For Ms.

Yoon, completing her financial information means that she must provide the mortgage application she made to the initial mortgage company and that she must attempt to provide some written confirmation about her attempts to obtain a copy of her mortgage application from Servus and why they cannot provide her mortgage application. [ 13 ] In addition, Ms. Yoon must provide information about the Alberta Works program from which she is receiving support, including the amounts of support she has received since she has been part of the program. [ 14 ] In addition, as discussed during the most recent case conference, Ms.

Yoon must provide additional information about the jeonse lease arrangement on her Korean condo, having in mind that a Canadian court will not be familiar with that type of arrangement. Therefore, a court is likely to need a copy of the lease agreement itself and the bank records evidencing her receipt of the lump sum lease payment and of the deposit into a Canadian bank account of those lease monies. The court will want to understand the date on which Ms. Yoon must return the entire lump sum lease deposit since that obligation will presumably affect Ms.

Yoon’s financial circumstances, may require the sale of her Canadian property and, amongst other matters, may temper a conclusion about the actual value of Ms. Yoon’s net assets. Indeed, in order to better understand the needs-based aspect of her spousal support claim, Ms. Yoon must provide a copy of all of her Canadian bank records since she returned to Canada in December, 2012. [ 15 ] Ms.

Yoon will also have to provide a current budget, and a current deposition by way of oath or solemn declaration of all of her assets both in Canada and in Korea and of all of the assets of which she is a trustee, if not the beneficiary, such as any bank account which she has set aside to fund her contribution to the parties’ child’s RESP. Although Ms. Yoon has, during the case management process, provided information about a total of 5 bank accounts, it may still not be clear that these are the only current bank accounts which she has in Korea and Canada. Ms.

Yoon will include in her deposition of assets a statement about whether the condo on which the jeonse arrangement has been made is the same property which she owned in 2010. [ 16 ] Each of the parties claims that they have received loans from third parties; each party should have available for trial any contemporary written confirmation of such loans. [ 17 ] Ms. Yoon must remove ex. J from her affidavit filed October 3, 2016; that exhibit contains a settlement proposal from Mr. Sopczak which was not accepted and which is therefore privileged.

c) Information for the trial judge about the basis of the original order for spousal support [ 18 ] The trial judge will, of course, focus on material changes to consideration of spousal support since the special chambers decision in December, 2013. I have already determined that the acquisition by Ms. Yoon of a real estate asset in Alberta in 2014 is a material change of circumstance: this is an important asset which did not exist at the time of the trial.

[ 19 ] However, as I have tried to make clear to the parties, although I have understood that the trial court awarded Ms. Yoon spousal support on a compensatory basis and perhaps on a needs basis, I was unable to ascertain the reason why the monthly amount of spousal support was set at $1,700.00 in 2010 and maintained at that rate in 2013. I expect that the reasons for the choice of that award were made clear during the submissions by the parties at the conclusion of the trial. The trial judge will be assisted if that information can be provided by the parties.

I also understand that, in 2010 the trial court concluded that the Korea real property owned by Ms. Yoon was not matrimonial property; however, I am not certain if the value of that property was taken into account in determining spousal support. [ 20 ] Because she is represented by a lawyer, Ms. Yoon will make the Spousal Support Guidelines calculations available for consideration by the trial judge.

d) Need for a trial rather than a special chambers application [ 21 ] The situation here is one where each party disputes the financial situation of the other. [ 22 ] Mr. Sopczak believes that Ms. Yoon is understating her total assets. Ms. Yoon may believe that Mr. Sopczak is intentionally under-employed. Where the basic facts relating to spousal support are disputed, it is imperative that the issue be tried, in order to allow the court to make assessments of credibility, especially in a situation such as this one where the economics of the dispute do not allow for the calling of independent evidence.

e) Need for a two-day trial [ 23 ] Although this is a matter which could aptly be described as a one day viva voce hearing, since it is not one where witnesses other than the parties themselves will testify, two days must be set aside in order to take into account the potential need for an interpreter and the potential need for the judge to consider what now amounts to an archive box of evidence and information.

Therefore, for administrative reasons connected with the booking of time, I will refer to the viva voce hearing as a two-day trial. [ 24 ] The two day trial: - will take place on April 18 and 19, 2017; - the parties do not have to file a Form 37 to secure those dates; - the parties do not have to file any additional pleadings. Mr. Sopczak’s application to reduce or cancel spousal support is an adequate basis for the hearing; - Mr. Sopczak will have carriage of the trial, that is to say, he will go first, and he will bear the onus of proving that the spousal support award should be reduced or cancelled; - Ms.

Yoon shall be responsible for providing an interpreter if she requires one. If possible, the interpreter should be certified as a court interpreter; if uncertified, the proposed interpreter must satisfy the court as to their competency and their understanding of their obligations as an interpreter. In any event, the interpreter must be impartial as between the parties; - the trial will deal with changes since the 2013 spousal support order.

It will not deal with any spousal support issues arising prior to 2010; it will only deal with matters arising between 2010 and 2013 to the extent that those matters assist in understanding the 2010 and 2013 spousal support decisions. The trial will not deal with parenting; - will hear viva voce evidence only from each of the parties; neither party is allowed to call any witness other than themselves. Documents from third party, independent, sources, prepared in the ordinary course of business, are likely to be admitted by the trial judge as evidence even though they are, technically, hearsay.

f) Maintaining the status quo until the trial [ 25 ] Neither party is entitled to bring any application on this file between now and the date of trial except with leave of the court. Heard on the 4 th day of October, 2016. Dated at the City of Edmonton, Alberta this 6 th day of October, 2016. J.B. Veit J.C.Q.B.A. Appearances:

Mr. Sopczak, Applicant on his own behalf Hamish J.D. Henderson for the Respondent