MacAusland v MacAusland, 2017 ABQB 304

Court of Queen’s Bench of Alberta Citation: MacAusland v MacAusland, 2017 ABQB 304 Date: 20170502 Docket: 4803 146289 Registry: Edmonton Between: Stephen Douglas MacAusland Applicant - and - Tina Marie MacAusland Respondent _______________________________________________________ Endorsement Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] Mr.

MacAusland, whose child and spousal arrears total nearly $400,000.00, applies in a special chambers application to vacate ongoing and arrears of spousal support, and, to retroactively reduce his child support obligations to correlate to his actual income and to adjust his child support arrears proportionately. [ 2 ] Mr. MacAusland’s child and spousal support obligations were set on July 7, 2009, in what amounted to a without notice application: after the lawyer who had been representing him filed a notice of withdrawal, the lawyer representing Ms. MacAusland served notice of a support application on that lawyer.

The former lawyer for Mr. MacAusland attended the hearing on July 7, 2009 and explained to the court that her former client may not have actually received notice of the application. The court then gave Mr. MacAusland the benefit of the doubt went ahead as if on an ex parte basis, thereby authorizing Mr. MacAusland to return to court to have the July 7 order re-assessed. Based on the only information which the court had, which was that Mr. MacAusland had been earning $120,000.00 for at least 8 months in late 2008 and early 2009, the court attributed that level of income to Mr. MacAusland for support purposes.

[ 3 ] Mr. MacAusland states that when he did receive notice of Ms. MacAusland’s application and of the July 7, 2009 order, he did not immediately return to court, as the order allowed him to do, because he could no longer afford a lawyer and he thought the situation was too complicated to deal with on his own. [ 4 ] On May 27, 2010, the parties were back in court in relation to the matrimonial home. As a result of the financial dispute between the parties, the parties’ matrimonial home had gone into foreclosure.

As of September 16, 2009 the amount owing on the mortgage was approximately $143,000.00 and the court ordered the property to be listed for sale for a minimum of $360,000.00. The court dealing with the foreclosure was therefore of the view that there was at least $217,000.00 of equity in that home. On the May 27, 2010 hearing, no updated information on the outstanding mortgage obligation or on the market value of the home was put before the court. The lawyer then representing Mr. MacAusland at that hearing informed the court that Mr.

MacAusland was concerned about his ½ equity in the matrimonial home and that there were disputes between the parties concerning the amount of equity to which each was entitled. Mr. MacAusland stated that his wife had run up very large credit card charges. Ms. MacAusland’s lawyer told the court that the parties had reached an interim solution which was that Mr. MacAusland would transfer the property to his wife’s lawyer, and the lawyer would hold the transfer back in trust until the underlying property dispute had been “sorted out”: FTR recording May 27, 2010, at approximately 10:23 a.m.

That property dispute has still not been sorted out. The form of order prepared for the May 27, 2010 decision did not include any restriction on the transfer of the property into the wife’s name alone; that, unrestricted, order was filed on June 3, 2010. It is obvious that Ms. MacAusland acted on the transfer: she was able to re-finance the property in her name alone and to use the resulting funds. [ 5 ] In September 2010, when the parties returned to court for a special chambers hearing, Mr.

MacAusland filed a letter dated September 15, 2009 from West Rock Energy Consultants, a firm which had last retained the services of the numbered company owned by one of Mr. MacAusland’s brothers; the letter said, in part, “Due to the downturn in our industry, we have not had any work for Steve since February, 2009.” Ms. MacAusland told the court that, in late 2008, she had received many phone calls from West Rock looking for Mr. MacAusland and saying that they had work for him into the fall and winter of 2008-9. The court maintained Mr.

MacAusland’s deemed income at $120,000.00 “in absence of evidence to the contrary”. The court indicated that it was skeptical of Mr. MacAusland’s arguments concerning the change in his employment status because he had not provided any independent evidence of his 2009 and 2010 employment income or any evidence at all of efforts to find replacement work in the drilling industry; it seemed to the court that, even with the acknowledged downturn in the oil and gas industry since 2008, Mr. MacAusland merely chose to stop working at his normal occupation as an unacceptable response to his support obligations.

The judge who heard the matter in September 2010: seized herself of the proceedings, indicated that she would case manage the matter until it was ready for trial; ordered the matter to come back before the court within 90 days, during which she stayed the arrears as of September, 2010; ordered each of the parties to provide documentary evidence of actual income and ordered an updated budget from Ms. MacAusland for the next hearing; maintained the child support obligation at $1,700.00 per month; and, lowered the spousal support to $2,000.00 per month. The judge indicated that because Mr.

MacAusland’s equity in the matrimonial home still had not been dealt with, at the next hearing, the possibility of his equity being used to deal with the arrears would be canvassed. [ 6 ] Neither of the parties went back before that judge within the next 90 days, or at all. [ 7 ] In 2012, when they were both unrepresented, the parties went before a different judge who ordered them to agree to a date for a special chambers hearing. No date was agreed on and neither party went back to court for the court to set a date. [ 8 ] It is not clear to me exactly when this occurred, but, on this application Mr.

MacAusland now provides evidence that, for some time after 2009, he worked as a labourer in a lumber yard in Rimbey where he lived. Ms. MacAusland suggests that the probable reason he was working in a lumberyard was because, at the time, he and his partner were making major renovations to the house in which they lived and that he probably received some additional benefit from his employment at the lumber yard. [ 9 ] In 2013, Mr. MacAusland was summoned by the Maintenance Enforcement Program to appear in a default hearing process.

Although there is no evidence concerning any preliminary activity prior to the summons, typically MEP first attempts to deal with support debtors on an informal basis and to work out a payment scheme prior to initiating a summons. It is presumably in connection with that process that Mr. MacAusland presented documents from his family physician, dated from 2013 to 2016, indicating that he is “unable to do any type of job that requires extensive us of his hands or fine motor skills with his hands”.

The same physician approved him for Income Support which is a program of last resort meeting only the basic needs of eligible applicants; this is what used to be called “welfare” and provides approximately $700.00 or half of what would be available to Mr. MacAusland on AISH. On the Income Support application form, Mr. MacAusland’s physician stated that he had hand deformities, edema and contractures secondary to injury, that this condition is permanent, and that Mr. MacAusland cannot maintain employment. [ 10 ] In 2015, Mr.

MacAusland attended the Rimbey Occupational Therapy Outpatient Program which reported: . . . writer is anticipating that Stephen will be unable to actively participate in gainful employment activities until he [has] maximized his functional hand progress with his outpatient programme . . .[after a 3 month splinter skills training and hardening] I recommend that Stephen then be considered for work assessment review. . . .

In view of the time lag needed to complete both the current OT Out-patient process and Work re-entry preparation and given Stephen’s excellent record of compliance with the same, I deem him worthy of financial support to supplement his income to enable a smooth transition from current unemployed status to gainful employment.” [ 11 ] Mr. MacAusland advises that, despite this recommendation, he has not been funded for a work assessment review. [ 12 ] During 2014, 2015 and 2016, Mr.

MacAusland received no income from employment; his only income has been small payments from a workers' compensation plan from the province where his workplace injury occurred and the Alberta government assistance described above. His total income is below the threshold even for child support obligations, much less child support and spousal support obligations; his two children have received essentially no support from him since 2014. [ 13 ] The MEP default hearing process has been adjourned without setting a date for resumption.

I assume this is because MEP is satisfied from the evidence obtained during that process (see above), that Mr. MacAusland is unable to be employed.

[ 14 ] The difficulty with the medical evidence produced during the default hearing process is that while it undoubtedly is correct with respect to any kind of work in which Mr. MacAusland would be required to use his hand, it does not take into account the fact that Mr. MacAusland was able to earn in the $120,000.00 - $200,000.00 range as a drilling supervisor without using his hands but using his brain. [ 15 ] On the application before me, Mr. MacAusland, who was employed as a well site supervisor at least from the early 2000s, indicates that, in early 2009, opportunities in his field dried up.

The September 2009 letter from the company which retained Mr. MacAusland’s brother’s firm was again produced; again, no additional evidence of the drying up of drilling opportunities or of efforts to obtain work as a drilling supervisor is provided by Mr. MacAusland. [ 16 ] Mr. MacAusland states that the loss of both his driver’s license and his passport make it impossible for him to work in the oilfield in Canada or overseas; the materials attached to his affidavit do indeed indicate that a valid driver’s license is a requirement to be a drilling supervisor. [ 17 ] Mr.

MacAusland is 46 years old and has a high school education. [ 18 ] From Mr. MacAusland’s application and from his history, it seems entirely possible that Mr. MacAusland is still able to work as a drilling supervisor in the oilfield. I come to that conclusion from the fact that Mr. MacAusland last qualified for work as a drilling supervisor in the oilfield in 2013, the same year when his family physician said that he could not work. However, Mr. MacAusland’s trade tickets expired in 2016; he testified that he did not renew them because he could not foresee resuming work in the oilfield. Mr.

MacAusland argues on today’s application that if he could have his license and passport back he could obtain work in the oilfield either locally or abroad. [ 19 ] The court can take judicial notice of both the downturn in the oil patch in 2008 and of the uptick in drilling opportunities in the early part of 2017 relative to 2015 and 2016. [ 20 ] One difficulty facing Mr.

MacAusland in his attempt to regularize his situation is that he has not, so far, shown goodwill in attempting to meet his child and spousal support obligations: for example, even when – by his own admission – he was earning some income, he was not voluntarily paying even child support, much less spousal support. Moreover, although given two opportunities by this court to have his support obligations reviewed, he has failed to take the court up on its offers. [ 21 ] Nonetheless, Mr.

MacAusland’s assertion that work in the drilling business dried up after 2008 may well be correct; indeed the only evidence on that issue is the evidence from West Rock Energy Consultants Ltd. to the effect that they had no work available. It may also be that, with Mr. MacAusland’s education, training and physical handicap, he was restricted as to the kind of work he could undertake if well site supervision was not available. [ 22 ] It may also be that the 2010 transfer by Mr.

MacAusland to his wife of the matrimonial home in which there was possibly total equity of $210,000.00 may offset some of his spousal support obligations. In addition to the transfer of his equity, there is also the issue of the potential increase in market value of the property from 2010 to current, all of which potential benefit accrues to Ms. MacAusland. Ms. MacAusland stated, at the hearing, that she had to use some of the re-mortgage proceeds on the matrimonial home to pay off what she described as matrimonial debt. Mr. MacAusland argues that Ms.

MacAusland is primarily responsible for the parties’ unhealthy credit card use. According to Ms. MacAusland’s own evidence, he may be at least partly correct in that assertion: Ms. MacAusland herself admitted in an affidavit filed on September 15, 2010, “While I do not deny that I have contributed to our debt . . . “ that was not the cause of the break-up of the relationship.

It is unlikely that the factual dispute between the parties concerning responsibility for credit card debt and access to corporate or matrimonial assets during the period after separation can be resolved without a trial. [ 23 ] As indicated above in relation to the default hearing process, Mr. MacAusland has been through that process without success: see ss. 27 - 30 of Maintenance Enforcement Act , RSA 2000, c. M-1. [ 24 ] It would obviously be better for all concerned if Mr.

MacAusland could actually find work of the kind for which he has training and experience: in 2007 and 2008, he had been earning approximately $1,000.00 a day as a well site supervisor. Because of the negative results of the MEP default process, it may well be that Maintenance Enforcement would not wish to reopen negotiations with Mr. MacAusland and, indeed, that Mr. MacAusland might not be comfortable in re-entering that process.

In any event, the court cannot direct that any individual debtor be dealt with according to that process and the court must also recognize the likelihood that that program is not sufficiently resourced to oversee all large support deficiencies. [ 25 ] In those circumstances, for a relatively short time, I will attempt the type of oversight in which MEP might engage in the circumstances here. [ 26 ] The first hurdle which Mr. MacAusland faces in attempting to return to being a drilling supervisor is the absence of tickets: his certification in his field is not currently in good standing.

As of January 2009, Alberta required the following technical qualifications for drilling and service rig managers: - first aid certification - fall protection and rig rescue certification - H2S Alive certification - transportation of dangerous goods certification - waste hazardous material information system certification

- second line well control (drilling rig managers) or well service well control (service rig managers) certification - special oilfield boilers certification. [ 27 ] I assume that the parties can, within hours, determine the current technical qualifications for service and rig managers.as of the spring of 2017. In the absence of evidence about how frequently the types of certification programs currently required to be a drilling rig manager are offered, but in the hope that such courses are offered relatively frequently, the court offers the following: if, within 90 days of today's date, Mr.

MacAusland presents acceptable evidence of the qualifications which are currently required in the industry for the kind of work he is seeking, and if, within the 90 days, Mr. MacAusland provides acceptable evidence that he has obtained the required certifications, Mr. MacAusland can renew his application. I will remain seized of the application. [ 28 ] The second hurdle which Mr. MacAusland faces in attempting to return to the oilfield is the substantial likelihood of actually obtaining employment here or abroad. If we reach the second stage, Mr.

MacAusland should be prepared to demonstrate that he has sought employment and that the only condition he would have to satisfy a prospective employer is possession of a driver’s license or a passport. Any potential employment should be with an arm’s length employer. In the context of potential employment, Mr. MacAusland will also have to satisfy the court that any prospective employer understands that Mr. MacAusland’s income will be garnisheed to satisfy support obligations and that this additional personnel issue is accepted by the prospective employer. [ 29 ] Although Ms.

MacAusland is unrepresented, she is entitled to costs of the April 24 th hearing. Given the history of these proceedings, Mr. MacAusland will pay Ms. MacAusland costs of $500.00 for that hearing and those costs must be paid prior to Mr. MacAusland renewing his application. Heard on the 24 th day of April, 2017. Dated at the City of Edmonton, Alberta this 1 st day of May, 2017. J.B. Veit J.C.Q.B.A. Appearances: Riley Gallant, Family Law Office for Mr. MacAusland Ms. MacAusland on her own behalf