Omonova v Omonov, 2017 ABQB 309

Court of Queen’s Bench of Alberta Citation: Omonova v Omonov, 2017 ABQB 309 Date: 20170503 Docket: 4803 153483 Registry: Edmonton Between: Oksana Matnazarovna Omonova Plaintiff - and - Tolibjon Solievich Omonov Defendant _______________________________________________________ Memorandum of a Case Management Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________ Introduction [ 1 ] The parties are former husband and wife. They have two adult children.

They have a history in the courts, and previous contested family law proceedings and case management have not brought this couple litigation peace. The most recent assertions which precipitated another case management meeting were the mother’s belief that her son was no longer a child of the marriage, having taken a term off his university studies. In addition, she asks for an increase in her spousal support, while the father wishes to end spousal support entirely. [ 2 ] For the reasons outlined in this short memorandum, both parties will lose their applications, and certain minor economic

changes in their relationship with each other will occur. Background [ 3 ] The parties, with two children, were divorced January 31, 2011, after a 20-year marriage. The divorce judgment gave the mother custody of their son. The father was obliged to pay child support. [ 4 ] A matrimonial property ruling December 21, 2011 (oral reasons only) divided their matrimonial property. I also concluded that Ms. Omonova (having been in a long-term relationship with her husband, and having been disadvantaged by the marriage) was entitled to indefinite spousal support commencing January 1, 2011.

At that time, the son was living with his mother in the matrimonial home. Their older daughter was in University and attempting to live on her own. The relationship between mother and son deteriorated. The son left the family home and went to live with his father. The change of residence required that Ms. Omonova pay child support. [ 5 ] Case Management Counsel, Ms. B. Kaminski, Q.C., has been attempting to assist the parties in resolving their many differences without the necessity of court intervention.

Issues under review [ 6 ] The issues which I am considering in this case management application are the following: • Should spousal support end or be adjusted in some fashion? • Is the son still a child of the marriage entitled to both

section 3 and

section 7 Guideline support from his mother? If so, in what amounts? • What ancillary orders should be made in light of changing circumstances and incomes of both the parents and their son? The position of the parties [ 7 ] The position of Ms. Omonova is that she is in dire economic straits. This situation arises in part from her relocation to Canada from a satellite of the former Soviet Union and from putting her husband through University. Although trained as a teacher, she has not been able to receive Canadian certified credentials to teach and therefore works in retail sales.

She opposes the ending of her spousal support and believes that it should be upwardly adjusted. [ 8 ] She concedes that her son returned to University in January 2017, but notes that between April 2016 and December 31, 2016, he was neither gainfully employed nor in school, instead wasting his time traveling in Europe attempting to become German-language proficient. In those circumstances, child support should end. [ 9 ] Ms. Omonova also asserts that Case Management Counsel, Ms. Kaminski, is biased against her as evidenced by her allegedly having pushed too aggressively Mr.

Omonov’s proposal, that he assume full responsibility of child care and in turn stop paying spousal support. She wishes me to remove Ms. Kaminski from the file. [ 10 ] The position of Mr. Omonov is that my original decision to award indefinite spousal support was in error, but in any event, Ms. Omonova has had sufficient time to become self-sufficient and is in fact doing better than he is and spousal support should end. [ 11 ] He asks that child support for the youngest child still be paid and denies that the child is going to be living on his own while going to University. Legal analysis The removal of Ms.

Kaminski from the file [ 12 ] This application is dismissed. It is a malicious attack on a judicial officer doing difficult and high-volume work attempting to resolve family law cases sitting around a table instead of in a courtroom. It is Ms. Kaminski’s role to go back and forth between the parties with any proposals that they may have. There is nothing in Ms. Kaminski’s conduct that would be other than praiseworthy at the highest level of professional integrity. This allegation is contumacious. It is an attack on the integrity of a fine and highly respected member of the court system.

It cannot be condoned and must be forcefully discouraged. This Court involved Case Management Counsel in the management of this litigation, including requiring the parties to meet with Case Management Counsel prior to this hearing. In doing so, the Court expected good-faith compliance by the parties. Ms. Omonova’s challenge to Ms. Kaminski’s ongoing involvement contravenes this Court’s direction and, to the extent that it purports to interfere with the Court’s reliance on the assistance of its judicial officers, has the potential to affect the efficient administration of justice by this Court. Ms.

Omonova’s application is dismissed with a penalty payable by Ms. Omonova directly to the clerk of the Court in the amount of $200. This amount must be paid prior to her receiving any further case management assistance. The declaration of Ms. Omonova as a vexatious litigant

[ 13 ] Mr. Omonov wants me to declare his ex-wife a vexatious litigant, so that he does not have to come to court and deal with these continuous allegations about his obligation to pay spousal support. Since this case is under case management, and since I must approve all applications, his attack on Ms. Omonova is also, in part, an attack on the courts. Yearly, I review matters relating to finance between the parties if asked. Ms. Omonova’s application was based on the fact that her child had left University.

Although she will lose that application, bringing it was neither frivolous nor continuous abuse of the courts. Mr. Omonov’s application to have his ex-wife declared a vexatious litigant is dismissed. Child Support The income of the parties [ 14 ] A proper foundation for considering spousal support, the apportionment of

section 7 expenses, child support for the child of the marriage, and hardship allegations requires a determination of the party’s income. The situation relating to the relative income of the parties is as follows. [ 15 ] Ms. Omonova provided her 2016 T4 slip as an attachment to her Confirming Letter. Mr. Omonov provided his 2016 T4 slip to Ms. Omonova and Case Management Counsel following the parties’ meeting with Case Management Counsel.

Although neither party provided a sworn copy of their 2016 T4 slips, I will use the information provided on the basis that it provides the best evidence of their updated income amounts. [ 16 ] Ms. Omonova’s 2016 employment income was $57,105. In addition, she was paid spousal support of $400 per month or $4,800 per year. Spousal support is not included in her income for the purpose of calculating

section 3 support but is included in her income to calculate her share of s.7 expenses, making her income for

section 7 purposes $61,905. [ 17 ] Mr. Omonov’s 2016 employment income was $79,014. From this amount, he paid spousal support of $400 per month or $4,800 per year. His income for

section 7 purposes is therefore $74,214. The

section 3 claim [ 18 ] The son is 19 years of age. His income in 2015 was $8,512 and in 2016 it was $5,597 (the latter having been confirmed by Mr. Omonov’s provision of the child’s 2016 T4 in an unsworn form). He was in University full-time until April 2016, and has returned to University in January 2017. Although he is of adult age, this is not determinative of his status as a dependent. He remains a child of the marriage, and Ms. Omonova must continue pay child support to her ex-husband based on her 2016 income, at the rate of $473 dollars per month.

This is an increase, which I direct to commence on June 1, 201 7 . [ 19 ] To expedite the transfer of funds and to reduce contact between the litigants, the father may utilize the right of offset, and offset his obligations as spousal support payor against those of his ex-wife as child support payor.

Section 7 expenses to be apportioned after deduction of the child’s contribution to them. [ 20 ] As indicated above, the parties’ proportionate shares of

section 7 expenses are calculated using Ms. Omonova’s income inclusive of spousal support received, and Mr. Omonov’s income less spousal support paid, or $61,905 for Ms. Omonova and $74,214 for Mr. Omonov. The income ratio obliges Ms. Omonova to pay 45.48% % and Mr. Omonov to pay 54.52% of all

section 7 expenses allowed. [ 21 ] The following expenses shall be considered

section 7 expenses where supported by a receipt: university tuition, any books prescribed by the professor for each class taken by the son and medical expenses. However, the son is expected to contribute something to the cost of his education in light of his income and therefore the first $1000 of the

section 7 expenses will be borne by the son and the balance will be shared by the parents. To reduce friction between the parents, Ms. Omonova will pay a sum of $175 per month to Mr. Omonov for

section 7 expenses commencing June 1, 2017, with the final annual adjustment to occur by agreement but in default of agreement utilizing the offices of Case Management Counsel, each April starting in April 2018 for the 2017 calendar year. [ 22 ] With respect to the

section 7 claims advanced by Mr. Omonov in his application and, in one case, by email in an unsworn form, the claims are denied except for the University tuition receipt for the 2017 winter term, which may be considered as part of the April 2018 review of 2017 calendar year expenses. While the course in Germany may have been beneficial to the child, it did not give rise to university credit and so it is not reasonable to require Ms. Omonova to share in the various expenses, including travel and accommodation in Germany, the course fee and document fees. Mr.

Omonov's unsworn claim for a 2015 expense for a course credit, which he submitted by email and not as part of his application, is denied because Ms. Omonova did not have an opportunity to respond to the claim, it having been provided outside of the application, and because the 2015 expenses have already been otherwise dealt with on a final basis. [ 23 ] Ms. Omonova remains entitled to claim a portion of the child’s University tax credit based on the contributions of the son and his two parents. If the parties are unable to agree on how that adjustment can occur they may contact Ms.

Kaminski to set the amount and I will confirm her calculation by such orders as may be necessary. In addition, Ms. Omonova is entitled to share the tuition tax credit related to the tuition amounts she was directed to pay in the 2016 Order, that is, Sherzod’s fall 2015 and winter 2016 terms. To address this issue on a set solution basis, this order directs a credit of $350 towards her child support arrears, which may be deducted by her from the total amounts outstanding and being paid over time.

Tuition tax credit for 2013 and 2014 [ 24 ] Each party took issue with the treatment of the tuition tax credit in the Order filed July 20, 2016 (“2016 Order”). Ms.

Omonova wanted the full amount of the tuition transferred to her as well as disclosure confirming the daughter’s full-time attendance at University. Mr. Omonov wanted the amount allocated to Ms. Omonova to be reduced to reflect the cap of $3,600 imposed on

section 7 expenses for Shannon during the relevant period of time. Rather than $330 for 2013 and $313.31 for 2014, he said that she should have been allowed $216 and $226.80 respectively. [ 25 ] Ms. Omonova’s requests are denied. The information regarding the daughter’s full-time attendance at university is no longer relevant as the decision to allow her tuition claim was made long ago and should have been appealed at that time if Ms. Omonova intended to take issue with it. Ms.

Omonova’s position that the tuition tax credit is worth the full value of the tuition is answered by the publicly-available T1 General, which clearly shows that the value of the tuition tax credit is 15% of the allowable amount claimed. [ 26 ] Mr. Omonov’s request is granted in part, as set out below. [ 27 ] For 2013, Mr. Omonov said that the tuition tax credit of 15% should be applied to Ms. Omonova’s 40% share of the

section 7 expenses of $3,600 (or $1,440), so that she would be entitled to $216 rather than $330. In fact, Ms. Omonova’s share of

section 7 expenses for 2013 was 44% pursuant to the Order granted July 15, 2013. Ms. Omonova’s share of the

section 7 expenses was therefore $1,584 rather than $1,440, and her share of the 15% tax credit was therefore $237.60. [ 28 ] For 2014, Mr. Omonov used 42% for Ms. Omonova’s share of

section 7 expenses of $3,600. However, that percentage was varied and set at 44.42%, by the Referee’s Report of April 26, 2016 and the 2016 Order, and her share of

section 7 expenses was adjusted accordingly. As a result, the 44.42% rate must be used in assessing any inadvertent overpayment to Ms. Omonova. Ms. Omonova’s 44.42% share of $3,600 is $1,599.12, for a tuition tax credit amount of $239.87. [ 29 ] As a result, Ms. Omonova should have received a tuition tax credit of $477.47 for 2013 and 2014, rather than the $643.31 allowed to her in para 13 of the 2016 Order. Ms. Omonova shall pay Mr. Omonov the difference, which is $165.84, which will be added to her arrears and payable as directed in this Decision. Repayment

schedule [ 30 ] I also wish to discuss some incidental financial matters that flow from my order. As a result of the 2016 Order, Ms. Omonova became obliged to pay child support for the child that generated outstanding arrears. She was allowed to repay those at $100 per month. This partial stay on the immediate payment of child support arrears will continue, but the amount of payment required commencing June 1, 2017 will increase to $200 per month until all of the arrears from my prior order and this order have been paid in full. The obligation to pay spousal support [ 31 ] Mr.

Omonov did not appeal my court order by which I ordered indefinite support. Although expressed as indefinitely payable, spousal support can be reviewed and can be decreased or even removed if financial circumstances justify it. Ms. Omonova still requires assistance. Plus, she was involved in a long-term marriage yet spousal support has not been ongoing for very many years. She will realize and will reach a point in time where spousal support will end, but it is not yet. Mr.

Omonov’s application to end spousal support or reduce it is dismissed with a contrary increase in it as set out below. [ 32 ] Historically, I set spousal support at $275 per month on an indefinite basis. During prior case management conferences this amount was increased to $400 per month. The 2016 tax returns reflect that while the parties have both been receiving increases in pay, Mr. Omonov’s salary has gone up year-over-year between 2015 and 2016 by approximately 12%. Ms. Omonova’s spousal support will increase June 1, 2017 by 12% to $450 per month. Mr.

Omonov may set off the spousal support obligation against the

section 3 child support payable of $473 (as at June 1, 2017) per month and also may set off the $200 per month, payable towards the arrears of child support and the $175 per month ordered as ongoing

section 7 expense advance payment. The net is that Ms. Omonova will pay Mr. Omonov $398 per month, as child support net of her offset for spousal support in her favour. She must continue to include $450 per month ($400 for January through May) spousal support in her income tax return. Other claims by Ms. Omonova [ 33 ] Ms. Omonova has advanced a number of claims: her allegations of misconduct on Mr. Omonov’s part, that income be imputed to him for various reasons including income from property in Uzbekistan, and that the Court make an order in respect of Mr. Omonov’s RESP savings.

All of these claims are dismissed, on the basis that some are the subject of previous court rulings and others are not supported by the evidence. Restriction on future applications and access to the courts [ 34 ] If the parties have any ongoing disputes about

section 3 child support or

section 7 expenses they must first meet with the Case Management Counsel to see if they can be resolved. Failing resolution the Case Management Counsel may acquire an order appointing her referee to create and produce a referee’s report. Neither party may apply to the courts for any other remedy whatsoever (this restriction does not prevent their right of appeal of this order) unless prior approval is obtained from the Case Management Justice or the Associate Chief Justice. Penalty

[ 35 ] The amount awarded in this order is a penalty of $200 against Ms. Omonova payable to the courts to sanction her contumacious allegation of bias and inappropriate conduct towards Case Management Counsel and, indirectly, this Court. Judgment

summary [ 36 ] The spousal support payable by Mr. Omonov to Ms. Omonova increases to $450 per month, effective June 1, 2017. The

section 3 child support for the child of the marriage is set at $473 per month, with the increase effective June 1,

Section 7 expenses will now be paid periodically, and subject to adjustment, at $175 per month commencing June 1, 2017. The stay on Ms. Omonova’s obligation to pay child support arrears remains in effect, but the monthly payment increases to $200 per month. Economically, the net monthly cash flow is a payment from Ms. Omonova to Mr. Omonov of $398 starting June 1, 2017. [ 37 ] Ms. Omonova will pay Mr. Omonov the amount of $165.84 for the overpayment of the tuition tax credit for 2013 and 2014, which will be added to her arrears of child support and payable as directed in this Decision. Ms.

Omonova shall have a credit of $350 for tuition tax credits for 2015 and 2016, which shall be applied against the arrears of child support. [ 38 ] Finally it is again confirmed that any further litigation by this couple in the courts require leave of either the Associate Chief Justice or the Case Management Justice. Heard on the 6 th day of March, 2017 Dated at the City of Edmonton, Alberta this 3 rd day of May, 2017 A.W. Germain J.C.Q.B.A. Appearances: O.M. Omonova Appeared on her own behalf for the Plaintiff T.S. Omonov Appeared on his own behalf for the Defendant