Mann v Padda, 2017 ABQB 579

Court of Queen’s Bench of Alberta Citation: Mann v Padda, 2017 ABQB 579 Date: 20170927 Docket: 4803 116851 Registry: Edmonton Between: Dharminder Singh Mann Plaintiff - and - Baljinder Padda also known as Baljinder Mann Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] The issue is whether Dharminder Singh Mann should be required to pay ongoing and retro-active child support. [ 2 ] The parties were married in India on February 8, 1998. It was an arranged marriage.

The wife, Baljinder Padda, went to India from Canada for the wedding. The parties’ son, Gurkawal, was born on November 11, 1998. A year after the wedding, Mr. Mann came to Canada. The parties lived with Ms. Padda’s parents in Canada for about 35 days and then separated. After separation, they had no further contact. [ 3 ] They divorced on August 2, 2001. The Divorce Judgment required Mr. Mann to pay Ms. Padda monthly child support of $115.00 beginning April 1, 2000. This was the guideline amount based on Mr. Mann’s income of $13,514.00. That corollary relief was consented to. [ 4 ] Mr.

Mann has had no contact with Gurkawal. Gurkawal turned 18 on November 11, 2016. Mr. Mann has always paid the monthly child support as ordered. [ 5 ] In January 2002, Mr. Mann remarried. His new wife’s lack of facility in English prevents her from working in Canada. Mr. Mann and his wife have two children, presently aged 13 and 11. Mr. Mann has also recently sponsored the immigration of his parents to

Canada and he is responsible for their support. Mr. Mann therefore supports the four adults and two children in his household, and currently, Gurkawal, on his earnings of about $3000 net a month. [ 6 ] On October 13, 2016, Ms. Padda initiated a Child Support Resolution Meeting. This was pursuant to Court of Queen’s Bench Family Practice Note #4 which requires unrepresented parties seeking a variation of a child support order to attend a “CSR meeting” before filing their application. [ 7 ] In January 2017, Mr.

Mann was served with a Notice of the CSR meeting issued by the Clerk of the Court pursuant to s. 9 of the Practice Note. It indicated that Ms. Padda sought a variation of ongoing child support payments. The date of the CSR meeting was initially December 5, 2016 but it was adjourned to January 31, 2017. Mr. Mann swears that Ms. Padda never contacted him prior to January 2017 with regard to increasing his child support. [ 8 ] The CSR meeting was held on January 31, 2017. Mr. Mann provided the financial information he was requested to provide.

The CSR Officer determined that given his income, his ongoing child support payment should be increased to $563 per month. Mr. Mann signed a consent order to that effect and it was granted on February 3, 2017. [ 9 ] Everyone involved appears to have understood that the parties’ son was at the time in full time attendance at a post- secondary educational institution and was therefore still a “child of the marriage.” The Order so recited.

The Order also stated that it was “without prejudice to either party’s right to claim a retroactive adjustment for child support, either s. 3 or s. 7 support.” [ 10 ] Given that the variation was accomplished by a consent order prepared by the CSR Officer, no Application seeking a variation had been filed. The materials before the CSR Officer included a Financial Statement Statutory Declaration signed by Ms. Padda.

It identified Gurkawal born November 11, 1998 as the parties’ child but contained no information whatsoever relevant to the question of whether or not he was a “child of the marriage” despite his being an adult. [ 11 ] On February 24, 2017, Ms. Padda filed an Application seeking variation of child support. In particular she sought: a. changes to “my income and/or the other parent’s income for the purpose of child support”, b. a change to the allocation of s. 7 expenses for medical/dental insurance premiums and post-secondary education expenses, c. an order that Mr.

Mann pay retroactive child support to January 1, 2013, and d. an order for Mr. Mann to pay for a portion of the dental expense incurred in 2007. [ 12 ] Ms. Padda’s affidavit exhibited records indicating that she paid $9319.04 for orthodontic services for Gurkawal between October 2007 and December 2012, and a further $225 in March 2016. It also exhibited records indicating that $4470.82 was paid to Concordia University of Edmonton in 2016 and that $4270.82 was paid to Concordia in January 2017 in respect of Gurkawal.

It also exhibited receipts for the purchase for an Apple product from Best Buy and for something else from Concordia University, both in September 2016 for a total of $1539.40. [ 13 ] On March 14, 2017, Mr. Mann filed a cross-application seeking:

a) to vary the February 3, 2017 Consent Variation Order “on the basis of undue hardship suffered by Mr. Mann”,

b) disclosure required from Ms. Padda to assess her claim for child support for their now adult son, including information about her income and household expenses, confirmation that the son resides with her, confirmation that he is enrolled full-time in postsecondary studies, and information about his income and expenses, and

c) an interim stay of enforcement of the February 3, 2017 Order. [ 14 ] As to his consent to the February 3, 2017 order, Mr. Mann swore in his affidavit: During the meeting, the lawyer [the CSR Officer] told me that I had no choice but to pay the full amount for Gurkawal [the son] although I told the lawyer that I had to support my own wife, my two (2) other children, and soon, my parents. . . . I felt that I had no choice but to agree to the lawyer’s recommendation that child support be increased to . . . $563.00 per month. . .

I was so confused about what had happened after the Child Support Resolution, and I was advised by other people to speak with another lawyer. All of the lawyers that I have subsequently met have advised me that I should apply to vary the Consent Variation Order because Gurkawal is an adult, and therefore, I should not have to pay the Guideline amount of child support. [ 15 ] On April 3, 2017, Ackerl J. ordered that execution of the Consent Variation Order be stayed for a period of three months on the condition that Mr. Mann continue to pay the original amount of child support, $115.00 per month.

He also ordered that Ms. Padda provide:

a) Information in the form of an Affidavit sworn [by Ms. Padda] about her monthly household expenses;

b) Confirmation that Gurkawal resides with her;

c) Information in the form of an Affidavit sworn by Gurkawal about his income and expenses, including whether he has received scholarships or has student loans, or why he cannot obtain student loans; and

d) Confirmation that Gurkawal is a full time student at a postsecondary institution and a copy of his most recent transcript evidencing his grades.

[16] Notwithstanding the stay of enforcement, the Maintenance Enforcement Program withdrew $563 from Mr. Mann’s bankaccount on May 3 and August 1, 2017. The stay was extended on the same terms by order of Renke J., on August 16, 2017. [17] On August 25, 2017, Ms. Padda filed an affidavit sworn by the parties’ son.

He deposed that he resides with his mother, Ms.Padda, that he worked in 2016 and earned $6,733 doing so, that he has not worked in 2017 because he is taking care of his grandmotherwho is recovering from knee surgery and because “I am also exploring my options and preparations required to be a Dentist”, that he wasnot aware of any grants available for his education in 2016 but applied for and received a grant of $3000 in 2017, that he started a B.

Sc.Program at Concordia University in the fall of 2016 and completed 12 credits in “that period” and 9 credits “in the Winter of 2017.”, andthat 9 credit per semester is considered full time as per University of Concordia standards. The excerpt from the notice from AlbertaStudent Aid, exhibited to the affidavit, indicates that Gurkawal is approved for a total grant of $3000 “once your school has confirmedregistration for your study dates”. There is nothing to establish that Concordia University has done so. [18] Ms. Padda also filed a further affidavit.

It does not contain information about her monthly household expenses. Unsworninformation in that regard is contained in Ms. Padda’s counsel’s “Confirming Letter”. It indicates monthly expenses of $2167.00. [19] Also attached to the Confirming Letter is a copy of a Concordia University Transcript of Academic Record for the son,Gurkawal. It indicates that in the 2016 fall term, Gurkawal was initially registered in four courses, that he withdrew from two of them,and that he failed the other two. He attempted six credits and earned none.

The transcript indicates that in the winter 2017 term,Gurkawal registered for three courses or nine credits, that he failed all three courses and earned no credits. The transcript has thisnotation, “Unsatisfactory. Placed on Academic Probation. Limited to 3 courses.” Ms. Padda’s Application [20] Ms. Padda’s application is for a retroactive adjustment of s. 3 child support.

I have concluded for the following reasons that Ido not have jurisdiction under the Divorce Act s. 15.1 to grant such an order given that it was not made while the parties’ son was still achild of the marriage. [21] The materials before me indicate that Gurkawal, an adult, has been employed. It appears he is capable of working. [22] Further, the materials suggest that though he was registered in university, he was not a serious student given that he eitherwithdrew from or failed all of the courses he was registered in. [23] It also appears he has not been entirely candid in his affidavit.

He swore that he completed 12 credits at Concordia in oneterm and 9 in another. The transcript provided after the affidavit indicates that the affidavit is not accurate. It appears he has completedno credits. [24] Though in his affidavit he swears he is enrolled full time at Concordia, I am not able, given the inaccuracy of the otherinformation in his affidavit, to accept that evidence.

No documentation from the University to corroborate it has been provided. [25] I find that it has not been established that he is now or, that at any time since November 11, 2016, he has been, unable byreason of illness, disability or other cause, to withdraw from his parents’ charge of to obtain the necessities of life. Accordingly, I find that Gurkawal ceased to be a child of the marriage on his 18th birthday on November 11, 2016. [26] There was nothing in the materials relating to the Child Support Resolution process Ms.

Padda initiated in October 2016 toindicate that she was seeking a retroactive adjustment of child support. [27] Ms. Padda’s application seeking retro-active child support was filed on February 24, 2017. This was more than two monthsafter Gurkawal turned 18. An application for the retro-active adjustment of child support can only be made in respect of a “child of themarriage”. Gurkawal was not a child of the marriage when the application was made. I have no jurisdiction to grant the order sought. DBS v. SRG 2006 SCC 37 , [2006] 2 S.C.R. 231 at para. 88 - 90. [28] At the hearing of this application, Ms.

Padda’s counsel advised that Ms. Padda was no longer seeking contribution from Mr.Mann in respect of Gurkawal’s educational expenses. The application for contribution from Mr. Mann in respect of the orthodonticexpenses, though referred to in the Application, was not mentioned in the submissions. I assume that aspect of the application has alsobeen abandoned. In any event, the expenses in question were incurred between 2007 and 2012.

A claim for contribution in respect ofthem in 2017 is made too late and in any event, as in the case of the claim for retroactive s. 3 support, was not made in respect of a “childof the marriage” as it was commenced after Gurkawal turned 18. [29] Ms. Padda’s application is dismissed. Mr. Mann’s Cross-Application [30] Mr. Mann seeks a variation of the Consent Variation Order of February 3, 2017. That order resulted from a Child SupportResolution Program meeting. It is apparent on the face of the Order that it was represented by Ms. Padda and accepted at the time byMr.

Mann and the Resolution Program Officer that Gurkawal, though over 18, was a child of the marriage because “he was attendingpost-secondary education full-time.” The Consent Order was agreed to on the basis that Gurkawal was a child of the marriage. Now, inmy view, it is apparent he was not. [31] In my view, the revelation on the basis of evidence since filed that Gurkawal was not in fact a child of the marriage at the timeof the Consent Variation Order, is a change of circumstances justifying a further variation in respect of Mr. Mann’s child supportobligations. [32] I find that Mr.

Mann’s child support obligation ceased on November 11, 2016, when Gurkawal ceased to be a child of themarriage. Mr. Mann is entitled to repayment of any child support payments he made after that date.

[ 33 ] In the circumstances, it is not necessary for me to address Mr. Mann’s submission that the undue hardship exception to the Guidelines should apply to his situation. [ 34 ] He is also entitled to costs of this application which I fix at $500. Heard on the 18 th day of September, 2017. Dated at the City of Edmonton, Alberta this 27 th day of September, 2017. B.R. Burrows J.C.Q.B.A. Appearances: Mimi S. Simon for the Plaintiff J. Venkateshwaran, Student-At-Law for the Defendant