Buskas v Reid, 2017 ABQB 454

Court of Queen’s Bench of Alberta Citation: Buskas v Reid, 2017 ABQB 454 Date: 20170720 Docket: 4812 008775 Registry: Wetaskiwin Between: Vickie Camille Buskas Plaintiff - and - Craig Clifford Reid Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this Special Chambers application originally brought in regular chambers on June 6, 2017, Ms. Buskas, who is registered with the Maintenance Enforcement Program, asks the court for partition and sale of the matrimonial home and for an order that Mr. Reid’s maintenance arrears be paid from his share of the net proceeds of the sale. She also asks the court to remove the requirement imposed in 2015 that she obtain Mr. Reid’s consent to s. 7 expenses, particularly his consent to child care expenses. [ 2 ] Mr.

Reid brings a cross-application, filed on June 22, 2017, for an interim order: lowering his child support retroactive to January 1, 2016; re-assessing the court’s October 2015 order; selling a property located in Port Alice, B.C. of which he is a 1/6 th owner, with the proceeds going to Ms. Buskas in final settlement of spousal support; reducing or cancelling his support arrears; granting him a

right of first refusal in relation to parenting; and, related relief. [ 3 ] Ms. Buskas’ application to sell the matrimonial home is denied. [ 4 ] The court doubts that it has the jurisdiction, or statutory authority, to interfere in the Director of Maintenance Enforcement’s legislated authority to determine how to enforce arrears. [ 5 ] Even if this court did have jurisdiction to enforce support arrears, s. 21 of the Law of Property Act would apply here to stay any partition and sale of the matrimonial home until a trial deals with all matrimonial property.

Although some Alberta case law holds that the sale of the matrimonial home should not be ordered on an interlocutory basis where there are major unresolved matrimonial property issues, it may be that the only principle which applies to s. 21 is that each application must be assessed on its own merits. In the circumstances here, there are other major matrimonial property issues in dispute and Ms. Buskas has a home for herself and her children; this is not a situation in which the court will countenance the piecemeal distribution of property. [ 6 ] Ms. Buskas’ application to remove the requirement for Mr.

Reid’s consent to s. 7 expenses is denied, except in relation to child care expenses. When Ms. Buskas obtains employment paying her a yearly minimum wage of $35,000.00 gross, she will not need Mr. Reid’s consent to arrange for child care for the parties’ three children, the youngest of whom is 3 years old, so long as the cost of the child care is within the range of commercial day care charges in the community in which the parties live and on production of receipts. Within 30 days of receiving a receipt for day care of this type, Mr. Reid will pay his proportionate share of those costs.

The proportion will be based on Mr. Reid having an income of $140,000.00 a year and Ms. Buskas having an income of at least $35,000.00 or whatever greater income she actually earns. [ 7 ] Mr. Reid’s application is denied. In July 2016, a judge of this court ordered that Mr. Reid could not bring any further application in these proceedings until he has completed his financial disclosure. He has not yet done so.

Cases and authority cited [ 8 ] By the court: Kaing v Shaw 2017 ONSC 3050 ; Latcham v Latcham 2002 ONCA; Slongo v Slongo 2017 ONCA 272 ; Cushie v Cushie 2013 ABQB 690 ; Zhao v Liu 2010 ABCA 263 ; Lutz v Vanderlinde 2001 ABQB 579 ; Sivertsen v Sivertsen 2007 ABQB 2007 ; K.M.M. v D.R.M . 2016 BCSC 1263 ; Allard v Sylvain-Allard 2015 ONSC 2052 ; Law of Property Act , RSA 2000, c. L-7; Maintenance Enforcement Act , RSA 2000, c. M-1. 1. Background [ 9 ] The parties began to cohabit in December 2007, married in April 2008 and separated in October 2013.

They are the married parents of three children, now 3, 6 and 8 years old. The parents are in a shared parenting regime. [ 10 ] In July 2008, Mr. Reid added Ms. Buskas to his title as a joint owner of the matrimonial home which he had acquired prior to the marriage; Mr. Reid is the only party who has paid the mortgage on the matrimonial home. The only appraisal of the matrimonial home was done in 2013 by Mr. Reid. No evidence was available at the hearing of the municipal assessment of this property. As a co- owner of the property, Ms. Buskas had the ability to obtain the municipal assessment.

The mortgage owed against that property is apparently approximately, $145,000.00, and there is an $85,000.00 line of credit also secured by that property. [ 11 ] Ms. Buskas and Mr. Reid are 2 of 6 joint owners, as tenants in common, of a recreational property in Port Alice B.C. The municipal assessment of that property is $44,000.00. [ 12 ] The father is living in the matrimonial home; the mother is living in a home purchased by her parents for her use and in relation to which she pays her parents rent. [ 13 ] In the past, Ms. Buskas has worked as a flight attendant and as a dental assistant.

In 2013, the year of separation, she earned $35,000.00. She is currently working as a cleaner for a church and for some other clients. Although she has not filed her 2016 income tax return, it appears that her current monthly gross income is a little less than $1,000.00. [ 14 ] Mr. Reid works in the oil and gas field. He lost his employment with Suncor in 2013; he attributes this loss of employment to stress caused by the marital separation.

He quickly obtained work with another company operating in the oil and gas industry; like many employers in that industry, the company for which he works does not want employees and required Mr. Reid to set up a corporation with which the company then contracts as an independent contractor. For the corporate 2016/17 year, Mr. Reid’s company received a shade under $200,000.00 from the company which has contracted for his services. His accountant has deducted expenses from that gross income, including expenses Mr. Reid has paid to himself as the owner of equipment which he leases to his personal corporation.

The financial statements for Mr. Reid’s personal corporation show that there is approximately $90,000.00 in retained earnings in that corporation. [ 15 ] Ms. Buskas is registered with the Maintenance Enforcement Program. MEP indicates that Mr. Reid’s arrears, as of the end of May 2017, are $47, 504.30. However, MEP’s calculations appear to be in error. The October 9, 2015, order of this court - which stated that, as of June 1, 2016, if Ms. Buskas were not fully employed, the shared parenting child support set-off would be calculated as though Ms.

Buskas were earning an additional $16,745.00 for a deemed annual income for her of $34,740.00 - does not appear to have changed MEP’s accounting as of June 1, 2016. In 2015, the special chambers court calculated that the increase in Ms. Buskas’ deemed income would – starting June 1, 2016 - reduce Mr. Reid’s monthly child support from $2,234.00 to $1,890.00. [ 16 ] In addition, it was not clear to me from reading MEP’s report whether MEP took into account the aspect of the October 9, 2015, order which set Mr.

Reid’s arrears of spousal support by $18, 132.00 and ordered him to pay those arrears at the rate of $500.00 a month. It was not clear to me how MEP was taking that order into account, for enforcement purposes.

[ 17 ] The October 9, 2015, order also required Mr. Reid to pay Ms. Buskas costs of $500.00. I could not find that additional debt in MEP’s accounting. [ 18 ] MEP has registered a claim against Mr. Reid in Alberta’s Personal Property Registry. It has not registered any claim against Mr. Reid’s interest in the matrimonial home; when asked by Ms. Buskas why MEP does not do so, the answer she received was that they “do not do that”. [ 19 ] MEP has given to Mr. Reid a notice that his driving licence may be suspended if he continues in arrears. Mr. Reid requires a driving licence to maintain his employment. 2.

Jurisdiction of the Court to interfere with the authority of the Director of Maintenance Enforcement’s right to enforce arrears [ 20 ] Enforcement of this court’s support orders by the Director of Maintenance Enforcement is a complicated matter which has received relatively little judicial commentary. As I have had occasion to note in past decisions in commenting on s. 11 of the Maintenance Enforcement Act , primary authority for enforcement of support orders appears to lie with the Director: Enforcement by Director exclusive 11

(1) No person other than the Director shall take proceedings to enforce a maintenance order during the time it is filed with the Director.

(2) Subject to subsection (1), nothing in this Act prohibits the Director or a creditor from taking proceedings pursuant to another Act to enforce a maintenance order. [ 21 ] At the same time, s. 16 of the Act states that the Director, or a creditor, may file an order as a judgment of this court. As can be seen from the facts in this case, where the accounting by MEP appears to be deficient from the perspective of each of the litigants, the decision by anyone to use s. 16 is problematic. [ 22 ] Ms.

Buskas understands that, in practical terms, there would be chaos if creditors who were registered with MEP and the Director of MEP both initiated enforcement proceedings relative to court orders. A purposive

interpretation of s. 11 is that authority for enforcement of support orders lies with the Director. [ 23 ] Indeed, the only clear way in which a support creditor appears to be able to control which enforcement steps to take is to remove themselves from the maintenance enforcement program. Given the many benefits of the maintenance enforcement program to both payees and payors, a voluntary departure from the program is clearly an unenviable decision to have to take. [ 24 ] The Director of Maintenance Enforcement has not explained to Ms. Buskas why it did not take steps to deal with Mr.

Reid’s interest in real property in the same way that it has taken steps to deal with his interest in personal property. The Law of Property Act appears to allow the attachment of the interest of only one of two or more joint owners of property: Encumbrances against particular interest 24 If an encumbrance is registered against an interest in land other than the entire interest in the land in respect of which the order is made then (

a) if the land is to be physically divided between the co - owners, the Court may direct that the encumbrance on the land being divided be registered only against the land allotted to the co - owner in respect of whose interest the encumbrance was registered, (

b) if the land or part of it is to be sold and proceeds of the sale are to be distributed between the co - owners, the Court may direct that the encumbrance on the land being sold be discharged as against that land and compensation in an amount determined by the Court be paid to the encumbrancee from the proceeds accruing to the co - owner in respect of whose interest the encumbrance was registered, or (

c) if the interest of a co - owner is to be sold to another co - owner, the Court may direct that the encumbrance on the interest being sold be discharged as against that land and compensation for the vendor’s liability under the encumbrance in an amount determined by the Court be paid to the encumbrancee from the proceeds accruing to the vendor of the interest, if the interest sold was the interest in respect of which the encumbrance was registered. [ 25 ] Nonetheless, for the reasons discussed under the following heading, it is understandable that the Director would rarely be in a position to actually request partition and sale of a matrimonial home in order to pay off support arrears. 3.

In Alberta, ordinary rules of partition and sale do not apply to matrimonial homes [ 26 ] Case law clearly states that, with respect to ordinary real property, an application for partition and sale of jointly held property will rarely be refused. This court is not aware of the law in British Columbia with respect to property which is not the matrimonial home; it may be that either Ms. Buskas or Mr. Reid is entitled, as a co-owner of property in BC, to ask a BC court to make an order of partition of that property and to sell it.

This decision is not intended to have any application to the parties’ interests in the BC real property. [ 27 ] In Alberta, the partition and sale of a matrimonial home is dealt with differently from other real property, even matrimonial real property. [ 28 ]

Section 21 in

Part 3, Partition and Sale of the Law of Property Act states the following: Application of the Matrimonial Property Act and Family Law Act

21 Notwithstanding section 15(2), the Court may, with respect to land that comprises a matrimonial home as defined in the Matrimonial Property Act or a family home as defined in the Family Law Act, stay proceedings under this Part (

a) pending the disposition of an application made under the Matrimonial Property Act or

section 68 of the Family Law Act, or (

b) while an order made under the Matrimonial Property Act or

section 68 of the Family Law Act remains in force. RSA 2000 cL - 7 s21; 2003 cF - 4.5 s118; 2010 c16 s1 (46) [ 29 ] Although there are, of course, cases which have considered the partition and sale of matrimonial property, even of a matrimonial home, ( Cushie , Zhao , Lutz ), there is less commentary on the approach which should be taken to the application of s. 21 . In Sivertsen, Lee J. said: 11 It is generally correct that the Court should not order the sale of the former matrimonial home if there are significant other financial matters still to be resolved: Zaseybida v. Zaseybida, 2001 ABQB 640 (Alta.

Q.B.); Rankin v. Rankin, 2001 ABQB 899 (Alta. Q.B.); Bennett v. Stoppler, 2003 ABQB 723 (Alta. Q.B.). I would feel more comfortable, of course, if the weight of the decisions on which Lee J. relies were not mine. [ 30 ] It may be that the only principle which can be drawn from the case law is that each fact situation must be weighed on its own merits.

For example, if a chambers judge on an interlocutory application is satisfied that the matrimonial home will inevitably have to be sold, it may well be appropriate for that judge to order the sale of the home. [ 31 ] Alberta courts must approach case law from other jurisdictions on this issue with caution: not all jurisdictions have the equivalent of s. 21 of the Law of Property Act .

Nevertheless, the approach of judges in other jurisdictions when asked for an order to sell the matrimonial home on an interlocutory basis when entitlement to matrimonial property has not yet been decided by a court is useful in determining the factors which must be considered on such an application: see, for example, KMM and Allard . 4. Application of the general principles relating to partition and sale of the matrimonial home in the circumstances here [ 32 ] Although Ms.

Buskas frames her application primarily as an application for partition and sale, an assessment of the entirety of her application leads to the conclusion that Ms. Buskas is attempting to enforce support arrears.

As indicated above, I am doubtful that this court has the jurisdiction to make enforcement decisions. [ 33 ] However, even assuming that this court did have the jurisdiction to enforce arrears, it would not do so in this case. [ 34 ] Each of the parties owns considerable matrimonial property; in the absence of agreement between the parties on all material facts relating to matrimonial property, there will have to be a trial of that issue. [ 35 ] Fortunately for her and for the parties’ children, Ms.

Buskas receives sufficient outside support to be able to provide accommodation for herself and the parties’ children when she has parenting time. There is therefore no pressing need to sell the matrimonial home. Moreover, Mr. Reid has indicated an intention to remain in the matrimonial home; he may have access to sufficient assets to enable him to pay Ms. Buskas for her interest in the home as part of an equalization arrangement. [ 36 ] In

summary on this issue, Ms. Buskas’ application to sell the matrimonial home is denied because there is an outstanding dispute on the disposition of matrimonial property in general.

Section 7 expenses [ 37 ] Ms. Buskas’ application to remove the requirement that she obtain Mr. Reid’s consent to s. 7 expenses is denied, except in relation to child care expenses. [ 38 ] This is a high conflict situation. Ms. Buskas is currently earning very little money. Therefore, Mr. Reid will have to bear most of the cost of s. 7 expenses. The parties are in a shared parenting regime where each has a right to consultation and input in matters involving the best interests of the children. It is therefore appropriate that Mr.

Reid should have a say in what is necessary and reasonable in the best interests of the children in the circumstances here. [ 39 ] Ms. Buskas has not provided any evidence with respect to Mr. Reid’s position on s. 7 expenses other than his refusal to pay for child care. [ 40 ] The situation with respect to child care is different from that relating to other s. 7 expenses. At the present time, when Ms. Buskas is earning very little money in circumstances when she has control over when she works, she can choose to work when Mr. Reid is parenting the children; she does not need daycare when Mr.

Reid is parenting the children. [ 41 ] However, Ms. Buskas has the potential to return to earning at least $35,000.00 a year, as she did in the year of separation and as found by the chambers judge in 2015. Ms. Buskas is correct to say that a chicken-and-egg situation might have developed where she is not looking for full time work because Mr. Reid is not agreeing to pay for child care. Even if Ms. Buskas did become employed in a 40- hour-week, Monday-to-Friday, job the children may not need daycare and/or out-of-school care while Mr. Reid is parenting them on his days off. The difficulty with Mr.

Reid’s suggestion that the children don’t need daycare when he is off is that, generally speaking, commercial daycare operators are unwilling to set special rates for services which are only provided part time.

[ 42 ] In the result on this issue, when Ms. Buskas obtains employment that pays her a yearly minimum wage of $35,000.00 gross, she will not need Mr. Reid’s consent to arrange for child care for the parties’ three children, so long as the cost of the child care is within the range of commercial daycare charges in the community in which the parties live and on production of receipts. Within 30 days of receiving a receipt for daycare of that type, Mr. Reid will pay his proportionate share of those costs. The calculation of proportion will be based on Mr. Reid having an income of $140,000.00 a year and Ms.

Buskas having an income of at least $35,000.00 or whatever greater income she actually earns [ 43 ] If Mr. Reid becomes aware of any commercial service willing to provide part-time service at a part-time cost, he should let Ms. Buskas know and, if she does not agree with his proposal – and if Mr. Reid has completed his financial disclosure as discussed below, this matter can be revisited by the court. 6. Mr. Reid’s cross-application will not be heard at this time [ 44 ] In the summer of 2016, this court ordered that Mr.

Reid could not bring any future application in these proceedings until he had finalized his financial disclosure. [ 45 ] As of June 6, 2017, Mr. Reid had not provided his full financial disclosure. As of July 14, 2017, Mr. Reid still had not provided his full financial disclosure. Therefore, Mr. Reid’s counter-application filed on June 22, 2017 cannot be heard, simply because of the financial disclosure problem, i.e. without taking into account reference to the practice note relating to special chambers hearings. [ 46 ] Mr. Reid is a self-represented litigant.

He appears to have confused the information he has provided to the Director of Maintenance Enforcement with the requirement to comply with FL-17, including Appendix A. A copy of the court’s form, with the Appendix, were provided to Mr. Reid on July 14, along with some guidance as to the need for full and frank, sworn, disclosure of all assets, including a dollar value, as well as similar information in relation to all debts and liabilities. Self-represented litigants who may not understand court requirements should ask the court for information about the specific nature of their obligations. In this case, Ms.

Buskas’ lawyer usefully provided Mr. Reid with an itemized outline of the outstanding information. Mr. Reid provided some of that information at the July 14 hearing. The last item of required information, the list of income, assets and liabilities, has still not been provided. Mr. Reid must provide a sworn list of those items; as one example, he must list the equipment which he owns and leases to his personal corporation and he must value that equipment. In addition to providing the required list, Mr. Reid must, of course, keep the list up to date. [ 47 ] Ms.

Buskas should also, of course, be keeping her financial disclosure up to date. I note that she has not yet complied with a previous court order which requires her to provide her income tax information to Mr. Reid by June 30 th of every year. I do not know whether Ms. Buskas has otherwise kept up with her obligations of evergreen financial disclosure. 7. No more interlocutory orders by either party; 5 day trial slot reserved for them until August 20, 2017 [ 48 ] The parties have been before the court on many occasions since October 2013 when they separated. The issues in dispute are not particularly complex.

It is not clear why the settlement of the disputes between them has taken so long. Ms. Buskas claims that Mr. Reid has “stalled” the proceedings; with respect, as plaintiff, Ms. Buskas is in a position to apply for the entry of these proceedings on the trial list as soon as she is ready for trial. In that sense, she is in charge of how long these proceedings are taking.

Having the dispute return to the court again and again is not good for the parties, and is certainly not good for the children who can’t help but be affected by the ongoing hostility between the parents. [ 49 ] The court therefore orders that, with the exception of a possible JDR as discussed below, neither party shall bring any further interlocutory applications without leave of the court.

It is in the interests of all parties, and their children, that this matter should be tried and final decisions made as soon as possible. [ 50 ] Unfortunately, both litigants and ourselves have to contend with long delays in setting matters down for trial. Ms. Buskas indicates that it is possible that she will be asking, at trial, for a change to the shared parenting regime which has been in place for several years. In addition, she may ask for a re-hearing of spousal support as the interim order expires on August 31, 2018. Mr.

Reid may ask a trial judge to re-assess his income for support purposes and to re-adjust his arrears and ongoing support. In light of the need to settle all of those various issues, Ms. Buskas is of the view that the parties are likely to require a 5 day trial. The earliest 5 day time slot available to them is in October 2018. I therefore direct the clerk to keep that slot reserved for the parties until August 20, 2017.

If, by August 20, 2017, the parties have not filed a Form 27, then the clerk will release the October 2018 dates. [ 51 ] In the circumstances here, the court suggests to the parties that it may be useful to have a JDR, if there is a slot available that would make such an extra step worthwhile. 8. Costs [ 52 ] Ms. Buskas’ application was too lengthy to be heard on June 6; it should have been set down for a special chambers hearing. Therefore, she is not entitled to costs of the June 6 appearance. Ms. Buskas was, however, partially successful on the special chambers application heard on July 14. Therefore, Mr.

Reid will pay her $500.00 in costs for that hearing; this amount will be added to Mr. Reid’s account at Maintenance Enforcement. Heard on the 6 th day of June and the 14 th day of July, 2017. Dated at the City of Wetaskiwin, Alberta this 19 th day of July, 2017.

J.B. Veit J.C.Q.B.A. Appearances: Helen M.J. Banks Banks Family Law for the Plaintiff Craig Clifford Reid on his own behalf