Ambrus v Crowdis, 2017 ABQB 227

Court of Queen’s Bench of Alberta Citation: Ambrus v Crowdis, 2017 ABQB 227 Date: 20170329 Docket: 4810 023001 Registry: Red Deer Between: Tammy Marie Ambrus Plaintiff - and - Shawn Timothy Crowdis Defendant/applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this morning chambers application, relying on what he describes as a medical inability to work, Mr. Crowdis asks the court to reduce his ongoing spousal support to $0 and to cancel his spousal support arrears. [ 2 ] Relying on Minutes of Settlement entered into in October, 2015 which prevent either party from applying to vary the order requiring Mr. Crowdis to pay $1,500.00 in spousal support starting May 1, 2016 and thereafter monthly for a period of 49 months, Ms. Ambrus opposes the application. [ 3 ] Mr.

Crowdis’ application is denied. [ 4 ] The contract between the parties is clear: neither is entitled to ask for a variation of the settlement agreement for any conceivable reason. There is no reason to relieve Mr. Crowdis of his contractual obligation. Although Mr. Crowdis’ evidence supports his contention that he is currently not earning sufficient income to meet his contractual obligation, one must assume, because he was represented when he signed the settlement agreement, that Mr. Crowdis had assets or other means to satisfy the spousal support obligation which he was formally accepting. [ 5 ] Moreover, Mr.

Crowdis’ evidence does not establish that he is physically unable to be employed. [ 6 ] For contractual reasons, Ms. Ambrus is entitled to an indemnity of her legal costs of this application.

Cases and authority cited [ 7 ] By the court : Miglin v Miglin 2003 SCC 24 ; Rick v Brandsema 2009 SCC 10 ; Rooker v Rooker 2017 ABCA 87 . 1. Background [ 8 ] The parties separated in 2013. In 2014, three spousal support orders issued in Ms. Ambrus’ favour. In October 2015, two further orders were made: one, on October 22, 2015 being a consent interim order requiring Mr. Crowdis to pay Ms. Ambrus $1,500.00 in monthly spousal support payments starting on May 1, 2016 and continuing for 49 payments unless Ms.

Ambrus re-partnered, and the other, on October 30, 2015, which set out the history of the payments and ordered that the proceeds of the sale of the matrimonial home be divided equally between the parties. [ 9 ] The Minutes of Settlement which created the basis for the October 22 and October 30, 2015 orders contained very detailed provisions relating to what it described as “limited term spousal support”. Amongst those clauses, Ms.

Ambrus acknowledged that she had been fully informed of all of her legal rights relating to spousal support, and was knowingly waiving those rights and replacing them with the provisions contained in the Minutes of Settlement. Another example of those detailed clauses reads: 4 . Limited term spousal support h No change in the circumstances of the Husband will be considered a material change justifying any spousal support for the Wife. All changes will be considered immaterial to her rights and obligations under these Minutes of Settlement.

The wife has either anticipated all changes as possibilities or had decided to take the risk that there will be changes. These Minutes of Settlement meet the objectives under the Divorce Act and is fair to the Wife. . . . [ 10 ] The agreement went on to state: l. The Husband and the Wife realize that their respective financial circumstances may change in the future by reason of their health , the cost of living, their employment or otherwise.

No such change shall give either party the right to claim Spousal Support or Maintenance and Support pursuant to the Divorce Act , as amended, or the Wills and Succession Act, or any other legislation, provincial or federal.

It is understood by each party that these Minutes of Settlement represent a final disposition of all financial issues between them and without limiting the generality of the foregoing, the Husband and the Wife specifically agree that none of the following events shall give rise to any claim for interim or permanent Spousal Support or Maintenance and Support or variation of any term of these Minutes of Settlement: m. temporary or permanent illness or disability, mental or physical, of either party; n. temporary or permanent loss of employment of either party; o. increase or decrease in financial obligations of any nature and kind; p. inflation; q. economic depression; r. increase or decrease in income of either party; s. assignment, bankruptcy or insolvency of either party; t. windfall or inheritance of either party; u. loss of child support or cessation of child support payments; v. failure to obtain employment after completion of education; w. failure to obtain employment when current employment ceases: x. failure to continue education for any reason; y. catastrophic or negative economic or personal events or series of events; z. remarriage, cohabitation or separation, to, with or from each other or any third party; aa. disparity of incomes or financial security bb. lack of pension or retirement income or disability income; cc. acts of God; dd. acts of war; or ee. terrorist attack. ff.

There shall be no further obligation to exchange ongoing financial disclosure by either party.

gg. There shall be no retroactive spousal support owing by either the Husband or the Wife as at the date of these Minutes of Settlement. [Emphasis added] [ 11 ] The agreement also contained the following term relating to costs: 14. Cost of enforcement of agreement a. Each party agrees to indemnify the other for any and all costs associated with enforcement of the within Agreement including all legal costs on a solicitor-client basis. [ 12 ] Each of the parties received independent legal advice relating to the Minutes of Settlement from a lawyer who signed a Certificate to that effect.

Each party also signed a Matrimonial Property Act acknowledgement which was also acknowledged by an independent lawyer. [ 13 ] Mr. Crowdis swears that he was involved in a serious motorcycle accident in December, 2015. He does not provide any medical records relating to that accident. [ 14 ] Mr. Crowdis provides “To Whom it May Concern” letters from his walk-in clinic physician to the following effect: - 29 April 2016: Mr. Crowdis is undergoing investigations to his right shoulder and awaiting hernia surgery. He “is at present unable to work due to this”; - 13 July 2016: Mr.

Crowdis reports a problem with his right shoulder and is waiting for an ultrasound for further diagnosis. He had hernia surgery. “He is to remain off duty till further notice/after appointments”; - 2 September 2016: Mr. Crowdis “has been booked off work” waiting for September 6 MRI for testing on shoulder. “I recommend him to stay off work till mid October, October 15 to assess all results and work on further referrals as needed”; - 4 November 2016: Mr.

Crowdis is still waiting for appointment for orthopedic surgeon and MRI and wait times for this are between 6-8 months at present. “He will not be able to work till he is seen.”; [ 15 ] Mr. Crowdis has also provided radiographic evidence as follows: - 22 September 2016: X-ray : History : Motorcycle accident few months ago, ongoing neck pain, radiculopathy R arm, L elbow; Impression : DDD and uncovertebral joint osteoarthritis at C4-5 and C5-6. Osteophytes potentially narrow the intravertebral foramina at those levels.

Facent joint osteoarthritis, possibly worst at C3-4. - 3 August 2016: Ultrasound; Ordering physician : Dr. Johan Myburgh; History: chronic shoulder pain; Impression : The tendon of the long of the biceps appears to be dislocated medially. While no discrete tears identified in the subscapularis at least the transverse ligament must be torn for this to occur. The supra and infraspinatus tendons are quite heterogeneous consistent with moderate tendinopathy. There was impingement identified with provocative maneuvers was some thickening of the overlying bursa.

May consider further evaluation with MRI; - 6 September 2016: MRI Indication : Shoulder pain after motor cycle accident. Ultrasound showed long head of the bicepts tendon dislocated medially with tendinopathy of the rotator cuff Impression: 1. Partial thickness articular surface tear involving the superior fibers of the subscapularis tendon. 2. Tendinopathy involving the supraspinatus and infraspinatus tendon. Partial thickness intrasubstance tear involving the supraspinatus tendon cannot be excluded. 3. Long head of the biceps tendon is medially dislocated from the bicipital groove.

The intra-articular segment appears attenuated with increased signal suspicious for partial tear. 4. Advanced degenerative change at the AC joint. [ 16 ] Mr. Crowdis states that, since October 2016 he has moved to Osoyoos BC to provide assistance to his aging mother. 2.

There was a binding contract between the parties [ 17 ] The written evidence proves that the parties had a mutual intention to create a binding contract and did so. [ 18 ] Not only did a formal, written agreement set out the parties’ intentions, but the court attendances at around the time the formal agreement was entered into is further proof of the intention of the parties to create a binding contract.

The contract itself is extremely specific, leaving the court with no option but to conclude that the parties had carefully considered the very detailed provisions which removed from each of them any future option of attempting to vary the spousal support portion of the agreement. 3. There is no reason why the parties’ contract should not be enforced [ 19 ] It is true, of course, that the law does not enforce all agreements. However, where a contract has been concluded, a party who wishes not to be bound by the contract must prove why the contract should not be enforced. Mr.

Crowdis argues that the effects of the unforeseen motorcycle accident relieve him of his contractual obligations. [ 20 ] The Supreme Court of Canada’ position on the enforceability of agreements in the family law context was articulated in Miglin and developed in subsequent case law. The court should set aside the wishes of the parties as expressed in a pre-existing agreement only where that agreement fails to be in substantial compliance with the overall objectives of the Act, including certainty, finality and autonomy.

[ 21 ] In particular, in Miglin , the Supreme Court set out a two stage process to analyze the enforceability of family law agreements: At the first stage, the court should look at the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it, including any circumstances of oppression, pressure or other vulnerabilities. Circumstances less than "unconscionability" in the commercial law context may be relevant, but a court should not presume an imbalance of power.

Further, the degree of professional assistance received by the parties may be sufficient to overcome any systemic imbalances between the parties. Next, the court must consider the substance of the agreement to determine whether it is in substantial compliance with the Act. Assessment of an agreement's substantial compliance with the entire Act will necessarily permit a broader gamut of arrangements than would be the case if testing agreements narrowly against the support order objectives in s. 15.2(6).

Moreover, a determination that an agreement fails to comply substantially with the Act does not necessarily mean that the entire agreement must be set aside. Even an agreement not fully enforceable may still indicate the parties' objectives and understanding of their marriage. At the second stage, the court must assess whether the agreement still reflects the original intentions of the parties and the extent to which it is still in substantial compliance with the objectives of the Act.

Accordingly, the party seeking to set aside the agreement will need to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned. Some degree of change in the circumstances of the parties is always foreseeable, as agreements are prospective in nature. Parties are presumed to be aware that health, job markets, parental responsibilities, housing markets, and values of assets are all subject to change.

It is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight. [ 22 ] As to the first stage, Mr. Crowdis has not established that he was suffering from any particular vulnerability when he signed the Minutes of Settlement. In any event, because he had professional assistance at the time of signing the contract, any systemic imbalance Mr.

Crowdis suffered at the time of the signing of the contract was overcome. [ 23 ] Next, the settlement agreement complied with the spousal support objectives of the Divorce Act . At least in part, the agreement was designed to meet Ms. Ambrus’ legitimate compensatory claim, i.e. the agreement was not solely needs based. Also, because it was time-limited, it respected the objective of adult self-sufficiency. [ 24 ] At the second stage, Mr.

Crowdis is required to show that a circumstance which arose after the contract was signed, in this case the motorcycle accident, was not reasonably foreseen by the parties and leads to a situation which cannot be condoned. Case law establishes that “health . . . [is] subject to change”. In this particular case, potential future changes of health were explicitly carefully addressed within a context which attempted to ensure that no future event would justify a variation of the agreement. [ 25 ] Can such an agreement be justified? In the circumstances here, it can.

While it is true that, generally, support is a function of income, the Divorce Act itself established that all of a person’s financial circumstances should be taken into account in determining support obligations. Those financial circumstances would include not only assets, but presumably inheritances, compensation for injury, and other matters which would not qualify as matrimonial property: see Rooker . Therefore, it was presumably the intent of these parties that employment income was not the only way in which Mr. Crowdis could satisfy his spousal support obligation. As one obvious example, Mr.

Crowdis was receiving, as part of the October 2015 negotiations between the parties, his half of the net proceeds of the sale of the matrimonial home; he might well have had other assets or expectations from which he could maintain spousal support payments. [ 26 ] In any event, Mr. Crowdis’ evidence on this application does not indicate that he is unable to be employed. His family physician offers the opinion that Mr. Crowdis should be off work even when that physician is unaware of Mr. Crowdis’ diagnosis; that opinion carries little weight. The MRI information is not interpreted in the context of Mr.

Crowdis’ potential occupational potential; therefore, that information is of little weight. [ 27 ] As the Supreme Court of Canada later counselled in Rick : 50 In other words, the best way to protect the finality of any negotiated agreement in family law, is to ensure both its procedural and substantive integrity in accordance with the relevant legislative scheme. [ 28 ] Here, the procedural integrity of the settlement agreement is established by noting the parties’ compliance with the Matrimonial Property Act and by the certificates of independent legal advice. [ 29 ] The substantive integrity of the settlement agreement is established by the explicit references by each of the parties of their knowledge of the law relating to spousal support and their intention to comply with that law as well as by the content of the agreement. [ 30 ] In

summary, Mr. Crowdis has not met the burden on him to establish that the settlement agreement should not be enforced. 4. Based on the parties’ contract, Ms. Ambrus is entitled to an indemnity of her costs for this application [ 31 ] Parties have the right to enter into contracts dealing with legal costs. The contract between these parties included provisions relating to legal costs. The contract is somewhat odd in that, in Alberta legal parlance, an indemnity of costs is otherwise described as a solicitor-and-own-client level of costs rather than a solicitor-client level of costs.

Nevertheless, because the parties used the word “indemnity” in reference to costs, and because that word clearly means to completely compensate a party for their legal costs, I conclude that an indemnity of costs is what the parties intended. Mr. Crowdis will therefore pay all of Ms. Ambrus’ legal costs relative to this application.

Heard on the 24 th day of February, 2017. Dated at the City of Red Deer, Alberta this 28 th day of March, 2017. J.B. Veit J.C.Q.B.A. Appearances: Scott M. Thurmeier, Family Law Office - Central Alberta for the Defendant, Mr. Crowdis Peter Crossley, Peter Crossley Law Office for the Plaintiff, Ms. Ambrus