Allen v Allen, 2017 ABQB 335

Court of Queen’s Bench of Alberta Citation: Allen v Allen, 2017 ABQB 335 Date: 20170523 Docket: 4801 141273 Registry: Calgary Between: Terrance Keith Allen Plaintiff - and - Leah Maureen Allen Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ [ 1 ] Leah Allen, the Defendant, applies for an order setting arrears and ongoing child and spousal financial support and

section 7 extraordinary expenses. Ms. Allen also asks the court to impute Mr. Allen's income. A contempt and costs order is also sought. [ 2 ] The parties were in a relationship for approximately 20 years, including 2 years of pre-marriage cohabitation. They have three children together and their youngest child, CA, 15, remains a dependent child of the marriage. [ 3 ] Ms. Allen worked as a florist prior to the birth of the parties' first child in 1993. She stopped working when she was approximately 5.5 months pregnant and has not been in the employment market since.

The parties separated in May 11, 2009. [ 4 ] Ms. Allen and the dependent child both have serious health issues. CA suffers from sleep apnea, hydrocephalus (build-up of fluid in the brain), epilepsy and ADHD. She had a serious stroke in 2002. CA is on a number of expensive medications and her treatment requires Ms. Allen to be available for multiple medical appointments per week. Ms. Allen suffers post-traumatic stress disorder (PTSD)

that she says is due to the abuse she suffered from Mr. Allen. [ 5 ] The parties have been litigating the issues of child support, spousal support and matrimonial since 2009. They have been in Case Management since 2011. [ 6 ] From 2010 to 2015 Mr. Allen earned an average of about $200,000 per year as a Petroleum Engineering Technologist working off-shore. The exception was in 2014 where he earned $95,110.00. [ 7 ] On August 4, 2010, Justice E.A. Hughes granted an Interim Order requiring Mr. Allen to pay Ms.

Allen $4,200 per month in spousal support and $3,725 per month in child support. [ 8 ] At a Case Management hearing on May 4, 2015, Mr. Allen represented to the Court that due to market forces his income decreased. I accepted that his income decreased and granted an Order ("May Order") setting his income at $100,000 thereby decreasing the amount of support payable to Ms. Allen to $868 per month in child support and $2,500 per month in spousal support.

Section 7 arrears were set at $20,000.00. [ 9 ] Revealed through questioning in 2016, Mr. Allen earned in 2015, not $100,000.00, but $187,428.87. He made no upward adjustment to his monthly support nor did he notify Ms. Allen of his higher income. Mr. Allen explained that the larger income in 2015 was due to commissions he earned on sales that far exceeded what was expected. In the May Order I also set Mr. Allen's arrears for

section 7 expenses prior to May 4, 2015 at $20,000.00. [ 10 ] Ms. Allen states that Mr. Allen has never made the $300 pre-payment of

section 7 expenses in accordance with the May Order. Mr. Allen has not reimbursed Ms. Allen for any

section 7 expenses since May 2015. [ 11 ] Mr. Allen confirms that he quit his previous employment in December 2015 because he wanted to join his wife who lived in her home country of Kazakhstan. He states that he decided he could leave his previous employment because he had a good paying job lined up in Algeria. The Algerian employment, he said, would pay him enough to catch up on arrears and pay higher monthly support than what was ordered in the May Order. As it turned out, the Algerian employment only lasted 3 weeks when Mr. Allen was laid off. [ 12 ] Mr. Allen has not made any child support, spousal support or

section 7 expense payments since June 30, 2016. Ms. Allen has been on income support since July 29, 2016. [ 13 ] Mr. Allen has not provided full financial disclosure. He failed to disclose the existence of a numbered company and a numbered bank account until Questioning in June 2016. Mr. Allen states that the required financial disclosure for the corporation has not been disclosed because he cannot afford the $900.00 to have an accountant prepare the books. Regardless, Mr. Allen states the numbered company has no assets.

He has also failed to answer all of the undertakings from Questioning in June, 2016. [ 14 ] Mr. Allen states that because of psychological health issues that his children are experiencing he is not looking for work overseas. Instead, he states he has taken a job as an installer in Calgary. He continues to seek employment in the oil and gas industry which employment opportunities he hopes is improving. He currently earns $38,800 per year. He asks the court not to impute a higher income but use that amount as his guideline income.

He also asks the court to reduce his arrears from $26,497 to $10,248 which he will pay $25.00 per month. Mr. Allen denies he owes $19,426 in

section 7 expense but agrees to pay $8,000 at $25.00 per month. Ruling [ 15 ] Mr. Allen has an obligation to work and to provide financial assistance to his dependent child and former spouse. Given the history of his employment and income, Mr. Allen is required to provide to the Court an explanation for his unemployment or his underemployment. [ 16 ] The onus is on Ms. Allen to establish an evidentiary basis upon which to establish that Mr. Allen is intentionally unemployed or underemployed and therefore an income should be imputed. [ 17 ] In Hunt v Smolis-Hunt 2001 ABCA 229 , 286 AR 248, the Alberta Court of Appeal stated: 19(1)(

a) of the Guidelines ... should be interpreted to impute income where the obligor has pursued a deliberate course of conduct for the purpose of evading child support obligations. We read the

section as requiring either proof of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her support obligations.... A court should only impute income under s. 19(1)(

a) of the Guidelines when it has evidence of the obligor's intention to avoid or undermine child support obligations. [ 18 ] In Smith v Smith , 2012 ONSC 1116 the Ontario Court Superior Court stated that a payor is intentionally underemployed if he or she earns less than they are capable of earning having regard for what is reasonable in the circumstances. [ 19 ] In assessing Mr.

Allen's situation, the factors that I consider include his age, education, experience, skills, health, past earning history, employment opportunities in the current economy and the amount of income that he could reasonably earn if he worked to capacity. A self-induced reduction of income is not a basis upon which to avoid or reduce support payments. [ 20 ] Furthermore, where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference when imputing a higher income to them. As mentioned, Mr.

Allen has made it difficult to get the disclosure needed to accurately assess his income. Some disclosure has been provided. [ 21 ] This court can take judicial notice of the decline in the energy sector of the economy due to the falling price of oil and gas. Employment opportunities have been seriously reduced. There is some optimism that this may change in the future. On the evidence

before me, I am not able to draw the inference that given Mr. Allen's work history in this economy he would likely be able to command employment income in the range of his 2010-2015 average employment income of $185,000 to $200,000. [ 22 ] Nevertheless, I am of the view that there is a sufficient likelihood the Mr. Allen should be able to earn a higher income by this time next year. Therefore, I set Mr. Allen's guideline income at $38,800 for child and spousal support until a further court order. [ 23 ]

Section 3 arrears are set at $26,500 as of March 1, 2017 to be paid at $50.00 per month on the 1st day of each month commencing May 1, 2017 by Mr. Allen to Ms. Allen. [ 24 ]

Section 7 arrears are set at $10,000 as of March 1, 2017 to be paid at $50.00 per month on the 1st day of each month commencing May 1, 2017 by Mr. Allen to Ms. Allen. [ 25 ] Mr. Allen in addition to the $100.00 per month towards arrears shall pay to Ms. Allen support for the child the sum of $303.00 per month payable on the 1st day of each month commencing May 1, 2017 and continuing thereafter until further court order. [ 26 ] Mr. Allen shall also pay to Ms. Allen his proportionate share of

section 7 expenses, the sum of $50.00 per month payable on the 1st day of each month commencing May 1, 2017 and continuing thereafter until further agreement or court order.

Section 7 expenses shall include those items listed from (

a) to (

e) in the draft order Ms. Allen referred to at this hearing. [ 27 ] Mr. Allen shall also pay spousal support to Ms. Allen in the sum of $800.00 per month payable on the 1st day of every month, commencing May 1, 2017 until further court order. [ 28 ] Mr. Allen shall provide immediate written notice to Ms.

Allen when he obtains a change in employment, including details of the type of employment and verification of his income. [ 29 ] The provision of income tax information clause and the MEP clause are to be included in the order. [ 30 ] This Order shall not be calculated by the Alberta Child Support Recalculation Program. [ 31 ] This Order shall be reviewed by the court at any time upon a party establishing a material change in circumstances.

Notwithstanding whether a material change in circumstances has occurred, this order will be reviewed upon application of a party one year after the date of this Order. [ 32 ] Lacking evidence of a serious intention to disobey court orders, the claim of contempt is denied. [ 33 ] Ms. Allen is awarded costs in the amount of $1,500.00 plus reasonable disbursements and GST payable forthwith. [ 34 ] Approval of the form of this order by Mr. Allen is not required and this order will be prepared by counsel for Ms. Allen and sent for signature by the Court. Heard on the 10 th day of May, 2017.

Dated at the City of Calgary, Alberta this 23 rd day of May, 2017. Bryan E. Mahoney J.C.Q.B.A. Appearances: Terrance Keith Allen not represented by counsel Erica Pridham for the Defendant