Osawaru v Osawaru, 2017 ABQB 155

Court of Queen’s Bench of Alberta Citation: Osawaru v Osawaru, 2017 ABQB 155 Date: 20170303 Docket: 4806 020305 Registry: Lethbridge Between: Osasumwen Osawaru Plaintiff/Applicant - and - Jacinta Oyenmwen Osawaru Defendant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The parties were married in 2011 in Nigeria and began cohabiting December 2012 when the wife (Defendant Jacinta) arrived in Canada. There is one male child, Jayden, born November 1 st 2013.

The wife has day-to-day care of Jayden. [ 2 ] An Application for interim child and spousal support resulted in an Order of Justice Langston of December 8 th 2015 wherein he set ongoing child support at $921.00 per month, and ongoing spousal support at $1,700.00 per month with any claims for retroactive support being reserved. The decision was based upon the father’s income of $106,000.00 and the mother’s income of $15,000.00 per annum. [ 3 ] The father applied for a stay, and a Consent Order was reached between the parties and granted by Justice B.A. Millar on August 23 rd 2016.

That Order provided that the father was to pay $500.00 a month towards arrears, and was to pay $2,000.00 a month for ongoing spousal and child support. It also provided that the previous Langston Order was stayed for three months, and that the

parties could return to court on November 22 nd 2016 for a further stay if they so desired. [ 4 ] While there was a draft further stay of Enforcement Order prepared, it was never obtained. [ 5 ] The parties entered into some negotiations, and some offers were made between the parties. However, no settlement agreement was reached with respect to child support, spousal support, or arrears. [ 6 ] The father has paid $2,500.00 a month for September, October and November of 2016. He reduced the amount of payments to $1,416.00 thereafter, and then again reduced payments to $1,188.00.

The mother says that no agreement was reached and the his reduction was unilateral. [ 7 ] The mother seeks to have the stay lifted such that arrears from the Order of Justice Langston can be calculated and collected, and as well wishes to set ongoing spousal support and child support. [ 8 ] The father maintains that the Interim Order of Justice Langston was inappropriate.

He maintains that the child support should be $892.00 per month, based upon an income of $101,000.00 in 2015, and that spousal support should be only $539.00 per month, apparently based upon some negotiations and discussions held between the parties. [ 9 ] Both parties would like to proceed with the divorce.

However, the mother says that the divorce should not proceed until the father has taken all necessary steps to dissolve the traditional marriage in Nigeria, which she says he has, as yet, failed to do. [ 10 ] Each of the parties have filed Affidavits. [ 11 ] It appears that the mother is in the process of completing her own certification to become a licenced pharmacist in Alberta. She is paying child care while attending lectures and internship. [ 12 ] I have no question but that the mother is entitled to spousal support, both compensatory and non-compensatory.

She has been raising the child Jayden, and has supported the father while he obtained his certification as a licenced pharmacist. It appears that the mother should be able to complete her certification process within one year’s time. [ 13 ] Justice Langston determined that spousal support should be $1,700.00 per month, payable by the father to the mother. Nothing in the materials provided to me has persuaded me that there has been a material change in circumstance such as to convince me to vary that Order. Accordingly, that Order is upheld.

However, spousal support shall come to a complete and final end on February 28, 2018. [ 14 ] Turning to child support, the father’s Notice of Assessment shows line 150 total income for 2015 at $101,254.00. Justice Langston proceeded on an assumed income of $106,000.00. An adjustment is therefore required for 2015, lowering the monthly child support payments from the ordered $921.00 per month to $892.00 per month. [ 15 ] I have searched through the materials filed, but have not been able to determine what the father’s 2016 income has been.

The father is ordered to forthwith provide to counsel for the mother his 2016 T4 slips showing the amount of his 2016 income, so that child support obligations can be based upon those real 2016 figures. For 2017, child support shall continue at the amount applicable for 2016, subject to recalculation once the actual 2017 income is known. [ 16 ] The stay of proceedings provided by Consent Order of Justice Millar has come to an end.

No further stay is ordered herein. [ 17 ] That is to say, from the outset of Justice Langston’s Order, the father must pay the sum of $1,700.00 per month to the mother on the first day of each month, up to February 28 th 2018. [ 18 ] The father must pay child support in the amount of $892.00 per month from the outset of the Langston Order to the end of 2015; he must pay the child support guideline amount for his 2016 income throughout 2016, and the same amount on a go forward basis in 2017, such to eventually be recalculated once his 2017 income in known. [ 19 ] From those amounts is to be deducted the amounts actually paid by the father to the mother for child and spousal support, to arrive at an arrears figure. [ 20 ] In addition to the spousal support and child support confirmed herein, the father shall pay $400.00 per month towards repayment of the arrears, until those arrears have been retired. [ 21 ] The Order taken out is to include a maintenance enforcement provision and a provision that it is subject to the recalculation programme. [ 22 ] With respect to the question as to whether the divorce should be severed from corollary relief, the parties’ affidavit evidence varies on this subject as to the requirements in Nigeria to annul a traditional marriage.

I am not satisfied that sufficient evidence has been provided to me to provide a basis to sever the divorce from corollary relief, and accordingly that application is denied. [ 23 ] Counsel for the mother is ordered to prepare this Order and provide it to counsel for the father for review. [ 24 ] The mother shall have costs of this application and appearance in the amount of $500.00 collectible as arrears. Heard on the 31 st day of January, 2017.

Dated at the City of Calgary, Alberta this 3 rd day of March, 2017. R.J. Hall J.C.Q.B.A. Appearances: William F. Malcolm for the Plaintiff/Applicant Rebecca Adenekan for the Defendant/Respondent