Sopczak v Yoon, 2017 ABQB 291

Court of Queen’s Bench of Alberta Citation: Sopczak v Yoon, 2017 ABQB 291 Date: 20170501 Docket: 4803 146696 Registry: Edmonton Between: Peter Sopczak Plaintiff - and - Gye-Sik Yoon Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.T. Moreau _______________________________________________________ I. Introduction [ 1 ] Pursuant to a Divorce Judgment granted after trial in December 2010, the Plaintiff, Peter Sopczak, was ordered to pay spousal support in the amount of $1,700 per month to the Defendant, Gye-Sik Yoon, a South Korean national.

His subsequent application to terminate spousal support was dismissed in December 2013 and the $1,700 per month payments were ordered to continue. He filed an application in 2015 again seeking cancellation of arrears and termination of ongoing spousal support which was heard in Special Chambers in May 2016. Veit J. determined that there had been a material change in circumstances since the last variation application, but set the spousal support issues for trial as they could not be determined on the basis of Affidavit evidence.

II. Divorce Act provisions governing spousal support variation applications [ 2 ]

Section 17 of the Divorce Act sets out the objectives of a spousal support variation order and the factors the Court must consider in making a variation order: Order for variation, rescission or suspension 17

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (

a) a support order or any provision thereof on application by either or both former spouses; or ... Terms and conditions

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. ... Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. ... Conduct

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should (

a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. III. History of the Litigation [ 3 ] The parties were married in 2002 in South Korea. Following a five-day divorce trial in December 2010, the Plaintiff was ordered to pay $1,700 per month in spousal support to the Defendant who was unemployed at the time and $296 per month support for their child born on December 27, 2002.

The child support payment was calculated on the basis of the trial judge’s expectation that the Plaintiff’s guideline income would be $36,000 for the period June 2010 to May 2011. The trial judge ordered that child support increase on June 1, 2011 to $519 per month based on the expectation that the Plaintiff’s guideline income would reach $60,000 by that point, with spousal support continuing at the rate of $1,700 per month. [ 4 ] The Divorce Judgment provided for the reduction over time in spousal support with their payment terminating after 30 months if the Defendant relocated outside Canada.

However, the trial judge ordered that if the Defendant resided in Canada, the Plaintiff was to pay indefinite ongoing spousal support in the amount of $1,700 per month. [ 5 ] The Defendant returned to live in South Korea along with the parties’ child for a period of time after the divorce, then returned to Canada, first for a visit in February 2102, then permanently in December 2012.

The Plaintiff made a variation application in 2013 which resulted in the cancellation of a significant amount of spousal and child support arrears but the dismissal of his application to reduce the $1,700 per month spousal support payments. At the time of the variation application, the Defendant was still unemployed. [ 6 ] The Plaintiff commenced the current spousal and child support variation application in 2015, which was adjourned to a special hearing, pending which ongoing spousal support was reduced on an interim basis to $1,000 per month and child support to $405 per month in November 2015.

The Defendant was still unemployed at the time of the interim order. [ 7 ] Veit J. heard the Special Application on May 3, 2016 and adjourned the spousal support issues to trial. She assessed the Plaintiff’s guideline income for 2014 (following the December 2013 Variation Order) at $40,764 and for 2015 at $47,503 and reduced

his 2014 and 2015 s 3 Guideline child support obligations accordingly. Ongoing child support was set at $382 per month based on the Plaintiff’s 2015 guideline income. Veit J. made a detailed disclosure order on July 4, 2015 and set a return date of August 30, 2016. On that date, she extended the deadline for disclosure to October 4, 2016.

She also suspended the Plaintiff’s obligation to pay ongoing spousal support until October 4, 2016 and suspended enforcement of child and spousal support arrears. [ 8 ] Veit J. directed on October 4, 2016 that the interim spousal support payment of $1,000 per month ordered in November 2015 continue until trial and that the suspension of enforcement of spousal support arrears continue until trial provided that the Plaintiff continued to pay ongoing child support of $405 per month (based on a guideline income of $50,000 per year) and the interim spousal support of $1,000 per month.

She extended the deadline for the exchange of disclosure to December 15, 2016. Her October 4, 2016 also limited the issues for trial: 9. The Trial shall deal with changes since the 2013 Spousal Support Order. It will not deal with Spousal Support issues arising prior to 2010, but only with matters arising between 2010 to 2013 to the extent that these matters assist in understanding the 2010 and 2013 Spousal Support Decisions.

The Trial shall not deal with Parenting. [ 9 ] While this application is concerned with whether there should be cancellation or variation of spousal support arrears accumulated since the last variation order was granted in December 2013 and whether ongoing spousal support should be paid and in what amount, I will review the trial reasons and the reasons on the Plaintiff’s 2013 variation application to provide the necessary context for the current application. IV.

The Reasons of the Trial Judge and of the Special Application Justice [ 10 ] In her oral reasons, the trial judge noted in relation to 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 5 th , 2007, and the sponsorship was required to December 5 th , 2010, in terms of what is required from the Department of Immigration.

From one of the exhibits I took out the one of the sponsorship obligations, and that is the documents that the father signed when he asked that the mother be allowed to come to Canada, and eventually she would be allowed 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, and has dealt with social services. Used clothing and furniture is often given to her by a friend. She has stayed at the women’s shelter [...]. [ 11 ] The trial judge also declared the condominium owned by the Defendant prior to her marriage to the Plaintiff to be exempt and the sole property of the Defendant.

She stated: 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. It was never 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. [ 12 ] The trial judge determined that the Defendant, who was unemployed at the time and had no income other than the interim spousal and child support, was entitled to compensatory and needs-based spousal support: 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 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. ... In 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 per 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. [ 13 ] At the Special Application heard on December 17, 2013, the Chambers Justice cancelled $20,000 in child and spousal support arrears on the basis that the Plaintiff had not been earning the $60,000 per year in the years following the divorce. However, she found that on a go-forward basis, the Plaintiff would achieve earnings of $60,000 per year. The Defendant was still unemployed.

The Chambers Justice observed in her oral reasons: 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. [ 14 ] The Chambers Justice referred to the trial judge’s observation that while the Defendant could become self-supporting in Korea, it would take a very long time for her to become self-supporting in Canada. The Chambers Justice found that she was not yet ready to do so.

She stated: In other situations, a five year marriage may 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 [the trial judge] ordered. [ 15 ] However, the Chambers Justice also noted that: ... [the Defendant] has not made, even a year later here, not made much effort, if at all, to find some type of employment when we are talking about Alberta, even for somebody with limited skills, but she does have ... skills as a book keeper. [ 16 ] The Chambers Justice observed that if the Defendant was doing something like bookkeeping, she was obviously going to need “very good English skills”.

She concluded that it was too early to terminate support: [...] 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 to just leave Justice Browne’s Order in and, 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 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. V. Change in Circumstances since the 2013 Variation Order [ 17 ] In her Memorandum of Decision of May 20, 2016 following the Special Application of May 3, 2016, Veit J. noted that since the 2013 Variation Application, the Defendant had purchased a house in Edmonton, had leased her condominium in Korea and had received lease monies in the amount of $170,000 (Can.) under a Jeonse lease agreement.

Jeonse lease arrangements provide for the receipt by landlords in South Korea of a lump sum amount instead of monthly rent, which they are able to invest but are obligated to return to the tenant at the end of the tenancy. [ 18 ] Veit J. found that the Defendant’s acquisition of her Edmonton home clearly was a material change in circumstances.

She also noted that the Defendant had not provided any information regarding her bank accounts nor had she explained how she was able to acquire a mortgage for the home and manage a monthly budget deposed to at the time of the application of $4,275, given she had no employment income and her child and spousal support was “greatly” in arrears.

A complete picture of the Plaintiff’s financial means was lacking, including her assets in South Korea, in regards to which Veit J. commented at para 33: “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.” [ 19 ] Veit J. concluded that she was unable to determine the spousal support issues on the basis of the materials filed. However, in addition to finding there to have been a material change in circumstances, she made the following findings, at paras 35-38: 1.

The Plaintiff’s guideline income had decreased from $60,000 set in the Divorce Judgment as of June 1, 2011 to $40,764 in 2014 and $47,503.75 in 2015. That difference in income was sufficiently large to constitute a material change in circumstances. 2. There was insufficient evidence to justify a conclusion that the Plaintiff was deliberately under-employed.

A similar argument was made by the Defendant at trial in 2010 and was rejected on the basis of there being insufficient evidence to justify that conclusion. [ 20 ] Veit J. reduced child support retroactively for 2014 and 2015 to the s 3 Guideline amounts corresponding to his guideline income for those years and the spousal support issues were set for trial. [ 21 ] The Plaintiff was self-represented at trial.

Prior to hearing evidence, he was provided with the relevant provisions of the Divorce Act relating to spousal support variation applications, including the factors to be considered in such an application and the objectives of a spousal support variation order. [ 22 ] Neither of the parties had provided the disclosure directed in Veit J.’s order of October 4, 2016. The trial was adjourned for a few hours for the parties to collect their financial information as disclosure issues were at the heart of Veit J.’s inability to determine the

spousal support issues. VI. The Condition, Means, Needs and Other Circumstances of the Plaintiff [ 23 ] The Plaintiff has a Bachelor of Commerce degree, worked in a bank for several years, then ran a family business for several years which he sold. He spent seven years in South Korea and on his return, started a trucking business. He experienced a heart attack then became employed as a manager-in-training with a tire firm in Hinton. As he was expected to work very long hours, he left that position then drove for a delivery company.

He was laid off then worked as a front-end loader operator in 2013, but was let go in January 2014 after being involved in an accident while on the job. His guideline income was determined to be $60,000 per year at the December 2013 Special application, commensurate with his income of $64,000 reported in his 2013 tax return. [ 24 ] The Plaintiff took driving instructor training in the first three months of 2014, receiving his certification in April 2014. At the time, he was also delivering newspapers and flyers, in addition to applying for sales and administrative positions.

As he had not been involved in administration work for a decade, he was unable to secure employment in that field. His income dropped to $40,764 in 2014, consisting of his driving instructor earnings at $20.00 per hour and his paper route. [ 25 ] In 2015, the Plaintiff obtained weekday employment as a motor coach bus driver, transporting workers to a refinery construction site in the early weekday morning hours and returning them from work in the late afternoon. He continued to work as a driving instructor weekday evenings and some weekends.

His 2015 income increased slightly to $47,503, consisting of his motor coach driver earnings, his driving instructor earnings and his paper route (which he had to give up when he obtained the motor coach driver job). [ 26 ] In 2016, the Plaintiff’s earnings increased to $74,848, consisting of his motor coach driver and his driving instruction earnings (the latter varying between $500 to $900 per month). While his motor coach overtime hours were initially limited as he was low on the seniority list, he was able to increase his overtime hours in 2016.

He is required to make his own tax remittances as an independent contractor on his driver instructor earnings and has accumulated an income tax debt of between $6,000 and $6,500 plus interest and penalties. [ 27 ] With respect to his future job prospects, the Plaintiff testified that with the scheduled completion of the refinery in 2017, he will lose his motor coach driving job by the end of this year. The project hit its peak in late 2016 with 100 buses transporting up to 4,500 workers to and from the worksite. The number of buses and workers is now decreasing.

He is looking into alternative employment prospects and is considering opening his own driver school. He believes he could do so while still employed as a motor coach driver as his split shift would allow him to conduct the administrative side of the business weekdays and to instruct weekday evenings and weekends.

However, federal garnishees on his spousal and child support arrears have prevented him in the past from arranging any form of bank financing. [ 28 ] The Plaintiff expressed concerns about his future employability if the current suspension of his spousal support arrears is removed, pointing out that the loss of his driver’s license would destroy any future opportunities for employment as a driving instructor. [ 29 ] The Plaintiff acknowledged that a statement of his assets and liabilities attached to his October 3, 2016 Affidavit contained debts that have either been repaid or are old and have not been pursued.

His April 19, 2017 statement of assets and liabilities reports $7,000 in assets consisting entirely of personal property. He also holds an RESP in his name for the parties’ child standing currently at approximately $13,500, but has been unable to make any contributions to it since returning to Canada from South Korea. [ 30 ] The Plaintiff’s current liabilities total $38,519. He drives a 2014 Honda Civic purchased in his brother’s name in 2015 as he was unable to qualify for a car loan in light of his MEP arrears. His car payments are $129 bi-weekly.

He reported that his MEP arrears stand at $25,000, however, if the Interim Order suspending arrears is made final, approximately $22,000 in arrears would be cleared away. He has a small bank account overdraft under $100, approximately $3,200 in credit card debt and the income tax debt of approximately $6,000. He reports loan indebtedness to his brother of $2,900 (accumulated over time) and to a friend of $1,000. [ 31 ] The Plaintiff lived for a time with his mother then moved into a room in a shared house in July 2015, for which he paid $600 per month.

He moved into a two bedroom apartment on July 1, 2016 for which he is paying $875 per month in rent. As for his budget indicating total expenses of $3,685 per month, he testified that it is not reflective of what he actually spends each month. He has not been able to make more than one $100 payment on the outstanding loan from his brother or paid anything on the smaller personal loan. [ 32 ] Under cross-examination, the Plaintiff was questioned on the revenues of the solely owned numbered company he uses to invoice his driving instructor earnings. He denied that the corporation has any assets.

In reviewing his financial statement and corporate tax return for 2014, revenues were reported of $23,195 and dividends of $17,100. He included the dividend income in his 2014 personal tax return. His 2015 tax return disclosed $29,000 in dividend income arising from his driving instructor billings. When asked about the discrepancy between the corporate tax return for that year reporting taxable income of $32,418 and dividends of $29,000, he explained that as he requires a cell phone and internet in order to book his students’ lessons, he expenses these items through the corporation. VII.

The Condition, Means, Needs and Other Circumstances of the Defendant [ 33 ] The Defendant is 54 years of age. Her assets consist of her condominium in South Korea, her home in Edmonton and her vehicle. Her mother purchased the condominium in the Defendant’s name but maintained control of the asset and the lease monies it

earned until her death in 2014. The Defendant was, however, able to access $63,000 in Jeonse lease funds in 2011 and 2012 while residing with the parties’ child in South Korea which she used for living expenses. [ 34 ] In her Affidavit of April 18, 2017, the Defendant valued the South Korea condominium at $200,000, however, in an Affidavit presented at trial, she estimated it to be currently worth between $200,000 and $250,000 (Can.). She did not tender any third party valuation information.

She indicated that the condominium’s marketability will be adversely affected by the fact that it is situated on the fourth level of a high rise building as four is an unlucky number in the Korean culture. When challenged under cross-examination on the value of the South Korea condominium at $200,000 in her earlier Affidavit, she acknowledged that the construction of a subway station in the neighbourhood has had a positive impact on the value of the condominium. She was asked if she had considered selling the condominium.

She stated that she did not think much further about the house and that a house is not easy to buy or sell. [ 35 ] For the purposes of this application, I find that the value of the Defendant’s exempt condominium in South Korea is $250,000 (Can.) based on the valuation information in evidence at trial received by the Plaintiff from a South Korean firm. [ 36 ] The Defendant applied the $107,000 balance of the $170,000 in Jeonse lease funds toward her purchase in the spring of 2014 of her Edmonton home for $433,000. This was over $6,000 above list price given competitive bidding on the home.

She also borrowed $43,000 from a friend in Korea but produced no documentation verifying the loan. She indicated that the loan has no repayment or interest terms. As she had no credit rating and was unemployed in 2014, she could not qualify for conventional mortgage financing. She found a mortgage with an 8% interest rate through a broker. She stated that no formal mortgage application was required and none was produced at trial, only the disclosure and commitment documents.

The Defendant was able to obtain conventional mortgage financing one year later and the current five-year closed mortgage stands at approximately $268,000. [ 37 ] The Defendant testified that when she purchased the home, she understood that the basement suite (advertised in the listing as a “mother-in-law suite”) was a legal suite from which she would be able to earn up to $1,400 per month in rental income.

She later discovered that the suite was not a legal suite and would require a good deal of renovation before it could be rented. [ 38 ] The Defendant deposed in her April 18, 2017 Affidavit that her Edmonton home is currently worth about $403,000, relying on a 2017 City of Edmonton tax assessment at $403,500.

However, previous tax assessments indicate considerable fluctuation in the value of the home, from $372,000 in 2014, to $414,000 in 2015, to $431,000 in 2016. [ 39 ] In the absence of a market valuation, and noting the difference between the City’s assessed value at the time the Defendant purchased the home in 2014 and the actual purchase price, I find the purchase price of $433,000 to be the best indicator of the home’s current value. [ 40 ] The Defendant has also acquired a 2013 Ford Escape since the last Special Chambers Application, which she valued at $14,000 and is unencumbered by loans.

She reported having approximately $2,200 in Canadian bank accounts and, according to a previously filed Affidavit, approximately $8,300 (Can.) in an account in Korea. Her debts consist of her mortgage at $268,000, the Joensee deposit funds of $170,000, the personal loan of $43,000 and an outstanding balance owing to Legal Aid of about $14,000 (as of 2014). [ 41 ] The Defendant received an accounting education in South Korea and worked there as an office manager for almost 20 years.

After the birth of the parties’ child, she became a stay-at-home mother. [ 42 ] Following the parties’ divorce in 2010, the Plaintiff returned to Korea with the parties’ child in March 2011 and enrolled him in school. They returned to Canada for a visit in February 2012, however, her mother’s illness prompted her to return to Korea. She stated that the Plaintiff asked her to move back to Canada and promised to help to support her if she did, referring to an email he wrote to her on November 24, 2012, stating: “I think that you should come and stay in Canada.

We can try and do the best for [the child] if we are all here and together”. He sent funds for airline tickets and she returned to Canada in December 2012. She maintains that this was all a ruse to facilitate his application for custody of the child.

Although his application was not successful, she did not return to South Korea nor did she consider selling her condominium there despite having no stable residence in Edmonton, living for a time with the child in a basement suite, then in a motor home in a friend’s driveway before purchasing her home in the spring of 2014. [ 43 ] The MEP statement in evidence shows child and spousal support payments of $22,527 in 2013 and $13,016 in 2014.

The decrease in payments corresponded to the time the Plaintiff was without employment and receiving driving instruction training, then working as a driving instructor and delivering flyers. [ 44 ] Since the Divorce Judgment was granted over 6 ½ years ago, the Defendant’s income has consisted of spousal and child support, having declared an income of $16,299.00 in 2013, $6,788 in 2014, and $12,548 in 2015. She has also been receiving the child tax benefit of about $300 per month and child support.

She started receiving a government living allowance in May 2016 of $1,042 per month as a result of her enrollment as a full-time student in a Metro Continuing Education English as a Second Language (ESL) program. Her tuition and books are also paid by the funding program. Any spousal and child support she receives is deducted dollar for dollar from her living allowance.

Depending on the outcome of this application, she may be required to reimburse $2,000 to the government for spousal support payments received after she started receiving government assistance in May 2016. [ 45 ] The Defendant has been attending the Metro program full-time which she hopes to complete by August of 2018. She indicated, however, that she will be applying to a NAIT ESL program commencing in September 2017 recommended to her by a friend, which is more academically-oriented but has limited funding opportunities.

She believes she would need about two years in that program before being linguistically qualified to enter a two-year bookkeeping program at NAIT, building on the skills she acquired from her bookkeeping experience in South Korea.

It is noted that if she remains in her current ESL program, she will have government funding until its completion. [ 46 ] In her most recent budget presented at trial, the Defendant’s expenses totaling approximately $3,200 per month, including: mortgage and taxes: $1,600; fire insurance: $130 (not mortgage insurance as represented in her budget); utilities: $300; transportation: $300; food: $400; personal: $150, and music lessons for the child: $300. She anticipates making an application to have the Defendant

share in the music lessons as a s 7 Guideline expense. [ 47 ] The Plaintiff cross-examined the Defendant on her representations at the divorce trial in 2010 that she had three job offers in Korea and would be living with her brother. She indicated that she changed her plans, moved in with a friend, and remained a stay-at- home mother, assisting their child to adapt to the Korean culture.

I am not of the view that this area of questioning was material to any change of circumstances since the last variation application in 2013. [ 48 ] The Defendant testified that she has been in and out of ESL programs since January 2013. She had difficulties concentrating and was required to repeat program levels. She has shown more commitment since obtaining government assistance for her current program in May 2016. The Plaintiff expressed skepticism with regards to the Defendant’s alleged lack of progress learning English.

He pointed out that she is able to deal with their son’s school in English and has navigated her niece and a friend from South Korea through local student programming. [ 49 ] The Plaintiff maintains that the Defendant has made poor financial decisions since the parties’ divorce. She continues to retain the South Korea condominium while living in Canada with no current plans to return to South Korea. A sale of the condominium would provide her with equity in the range of $80,000 to live on.

She used the Jeonse lease funds to purchase an expensive home for herself and their son in Edmonton, but failed to confirm before its purchase whether the basement suite could actually be rented. She is also under- employed. She has not applied for any form of work nor made any attempt to use her expensive home to earn income. While married, he and the Defendant planned to have Korean students board in their home as a means of earning income. Korean students boarded in their home in January and February of 2006. The Defendant’s niece stayed in their home for a number of years while attending high school.

A number of Korean students stayed in the home one summer for which the Defendant received remuneration. After the Defendant purchased her home in Edmonton, a friend from Korea stayed with her for six weeks. [ 50 ] The Plaintiff testified, based on his seven years’ residence in South Korea, that the Defendant would be able to earn room and board income from up to two students of at least $600 per month per student if sponsored through a school. If sponsored privately, he believed that she could earn up to $1,500 per month per student.

He related anecdotally that some friends in the U.S. were able to charge Korean students $2,000 per month (U.S.). He noted that a room and board arrangement with two students would permit her to deduct interest payments on her mortgage.

While he offered to move into the basement of the Defendant’s home, I find that this is not a viable arrangement given the long history of litigation between the parties. [ 51 ] The Plaintiff acknowledged that he has not made any recent inquiries about the market for this type of boarding arrangement in Edmonton and that his only actual experience with it was for a six-week period several years ago. [ 52 ] In response, the Defendant testified that Canada is not a popular university destination for Korean students as compared to the U.S. or England.

She adduced no evidence to support this statement, which the Plaintiff disputed based on having taught English in Korea. The Defendant pointed out that the school homestay program that she and the Plaintiff participated in for less than two months while married has been cancelled, but did not suggest that this cancellation was system-wide. She indicated that she would not make any profit on a $600 per month stipend.

She referred to feeling shame about the divorce and is reluctant to disclose her status as a single mother if she were to advertise for student boarders. [ 53 ] The Defendant alleged that the Plaintiff is earning full-time equivalent earnings as a driving instructor. This is not borne out by the evidence. While the Plaintiff has not prepared financial statements since the 2014 year end, I accept his testimony that he leaves no assets in the corporation.

He provided full disclosure (from source) of his driving instructor billings for the years 2014, 2015 and 2016, which are consistent with the earnings reported in both his corporate and personal income tax returns for those years, taking into account some corporate expensing of computer equipment and cell phone. I reject the Defendant’s contention that the Plaintiff incorporated the corporation to avoid enforcement proceedings and that he is hiding assets within the corporation.

While it was suggested that the Plaintiff could acquire a roommate for his two-bedroom apartment, his rental rate is commensurate with that of a one bedroom apartment at $875 per month. VIII. Findings [ 54 ] Having considered the condition, means, needs and other circumstances of the parties since the last variation order, in light of the objectives set out in s 17(7) of the Divorce Act , I make the following findings: 1. The Defendant gave up stable employment in South Korea to become a stay-at-home mother after the birth of the parties’ child. This situation continued when the parties moved to Canada.

When the parties separated, her role in the marriage and her inability to function well in English in Alberta left her unable to find work commensurate with her skills and experience as a bookkeeper. 2. The Defendant has not made significant progress toward self-sufficiency since the parties’ divorce in 2010. The Justice hearing the Plaintiff’s variation application three years later noted that the Defendant had not made much effort, if at all, to find some type of employment in Alberta, even for someone with limited skills.

This situation persisted through 2014 and 2015, along with her lack of commitment to language training until May 2016, when the Defendant entered her currently funded Metro ESL program. She is now considering leaving that program to embark on a NAIT program that has only limited funding opportunities. However, despite her lack of formal progress with ESL study, she is able to communicate with her son’s school and be very involved in his extra-curricular activities. She has sufficient language skills to qualify for basic forms of employment. 3.

The Defendant did not make financially responsible decisions acquiring a relatively expensive house in 2014 without first confirming that it contained a legal rental suite. Her housing costs alone are close to $2,000 per month for herself and the parties’ child. One year after her purchase of the home, she committed to a five year closed mortgage despite the fact that she was or should have been aware that she could earn no income from the basement suite. She will incur mortgage interest penalties if she sells the house before 2020.

There was no evidence that she has made any effort to explore potential boarding arrangements with Korean exchange students to earn some income or basic part-time employment during the three weekends per month the Plaintiff has the care of their child.

4. The Defendant indicated no intention to move back to South Korea in the foreseeable future, yet maintains a home there which she has had the ability to sell since her mother’s death in 2014. While she would be required to pay back the Jeonse lease funds of $170,000 (Can.), she would also free up equity to assist with her living expenses while she pursues her plans to complete her ESL program and eventual bookkeeping training. I am not satisfied that a sale of that asset would trigger an obligation to pay off the $43,000 personal loan from a friend which was used to purchase her Edmonton home.

There is no evidence of any documentation relating to that loan nor any indication that it has been secured against the South Korean condominium. 5. While the Defendant has made very little progress toward self-sufficiency from an employment perspective in the 6 ½ years since the parties’ divorce, she has the ability to achieve self-sufficiency between a sale of the condominium in South Korea, some part-time work in Edmonton or the prospect she has not investigated of securing a boarding arrangement with Korean students while continuing her studies. 6.

The Plaintiff has not been under-employed since the last variation application in December 2013. He has actively pursued various forms of employment. His inability to keep up with support payments arises from income levels that until 2016 fell well short of the $60,000 per year level he was expected to have achieved following the December 2013 variation application. 7. The Plaintiff has been unable to accumulate any assets to speak of in the 6 ½ years since the divorce.

He has for most of those years earned considerably less than expected and has been unable to sustain both the payment of child support and spousal support at $1,700 per month.

He has been unable to move forward with plans to operate a driving instructor business due to MEP constraints on his ability to obtain financing and his current employment is due to end within months. [ 55 ] Considering all of the circumstances, I am of the view that spousal support should be adjusted for 2014 and 2015 to reflect the Plaintiff’s significantly lower than projected income levels for those years and that spousal support should terminate as of May 1, 2016 when the Defendant was able to obtain government funding for her ESL studies.

Spousal support guideline calculations for 2014, based on the Plaintiff’s income at $40,764, range from $816 to $1,019 per month. Spousal support for 2014 shall be adjusted to $900 per month. For 2015, when the Plaintiff’s income was $47,503, the range set out in the spousal support guidelines is $921 to $1,155 per month. Spousal support for 2015 shall be adjusted to $1,000 per month. For the first four months of 2016, with the Plaintiff’s annual income being $74,848, the range is $1,464 to $1,811 per month. Spousal support shall be adjusted to $1,500 per month for each of those months then will terminate.

MEP is directed to recalculate the spousal support arrears based on this Order and on the basis, as conceded by counsel for the Defendant in his final argument, that from January 1, 2014 onward, any accumulated arrears are attributable to spousal support. [ 56 ] The Plaintiff indicated his willingness at trial to have child support adjusted to $640 per month to reflect his 2016 guideline income of $74,848. This adjustment shall be retroactive to January 1, 2016 and continues until further Order.

Arrangements should be made for the orderly payment of any arrears arising from my retroactive adjustment of spousal and child support arrears. To that end, there will be a stay of enforcement for 60 days on the condition that the Plaintiff pays $640 per month in ongoing child support commencing on May 15 th , 2017 in respect of the May 1 st payment and on the first day of each and every month thereafter.

Should the parties be unable to come to an agreement on the amount to be paid each month on the support arrears or they wish to speak to the costs of this application despite the mixed results, they should make arrangements to do so within that 60 day period. Heard on the 18 th , 19 th and 20 th days of April, 2017. Dated at the City of Edmonton, Alberta this 1 st day of May, 2017. M.T. Moreau J.C.Q.B.A. Appearances: Mr. Peter Sopczak Self-Represented Litigant Mr. Hamish J.D. Henderson Hamish J.D. Henderson Professional Corporation for the Defendant Gye-Sik Yoon