Aranes v Guanlao, 2017 ABQB 808

Court of Queen’s Bench of Alberta Citation: Aranes v Guanlao, 2017 ABQB 808 Date: 20171222 Docket: 4803 180031 Registry: Edmonton Between: Carolyn Aranes Plaintiff - and - Enrico Galvez Guanlao Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice S.N. Mandziuk _______________________________________________________ I. Introduction [ 1 ] On August 8, 2017, Khullar, J directed that the determination of spousal support be set down for an oral hearing.

Khullar, J further ordered that, commencing September 1, 2017, the Defendant is required to pay $150 per month to the Plaintiff as spousal support on an interim without prejudice basis. The August 8, 2017 Order also directed that the Justice presiding at this hearing would have the discretion to make a final order of judgment on the issue of spousal support. The matter came before me on Friday, November 24, 2017.

[2] The issues to be tried are: 1. the Plaintiff’s entitlement to spousal support; and 2. if there is entitlement, the quantum and duration of spousal support payable by the Defendant, which includes the determination ofthe Defendant’s income for the purposes of spousal support. [3] The Court heard testimony from the Plaintiff and the Defendant, as well as the Plaintiff’s immigration lawyer, Ms.Kuranicheva. The Affidavit evidence filed by the parties was also taken into consideration in these reasons. II. The Parties [4] The Plaintiff and the Defendant are both originally from the Philippines.

The Defendant is a Canadian Citizen; the Plaintiffis not. The Plaintiff arrived in Edmonton from the Philippines on a work permit in 2013, leaving her daughter who is now 13 in the careof her mother with the intention of earning an income to support her mother and daughter. [5] The Plaintiff and Defendant began living together in April 2015. The Plaintiff is 46 years old. The Defendant is 56 years old. [6] The Plaintiff’s work permit expired in August 2015 apparently due to her employer’s failure to submit a labour marketopinion in a timely fashion.

She received notice of the expiry in March or April 2016, and received advice that she should return to thePhilippines and commence the process of obtaining a work permit with the intention of returning to Edmonton. The Plaintiff’s evidenceis that she bought an airline ticket and intended to travel on May 31, 2016. The Plaintiff had, by this point, divorced her previous spouseeffective February 11, 2016. She discussed her plans with the Defendant and the parties decided to get married, and did so on June 19,2016.

After their marriage, the Defendant submitted an application to sponsor the Plaintiff and her daughter for permanent residency inAugust 2016. [7] The Defendant testified that it was the Plaintiff’s idea to get married. He deposed that he loved her and wanted to be with herfor life, taking care of her as his wife and taking care of her daughter as well. [8] Neither party argued that the marriage was entered into for an improper purpose, which was the case in M(

O) v M(NE),2003 BCPC 99 , [2003] BCJ No 774. Both testified that they married each other for love. [9] The Plaintiff and the Defendant began to experience difficulties in their relationship during the last half of 2016. Theyseparated on February 8, 2017. There was evidence given by both parties of marital misconduct. This is not relevant to the decision thatthe Court is being asked to make (Divorce Act, s 15.2(5)). [10] After the breakdown of the marriage, the Defendant withdrew his sponsorship of the Plaintiff and her daughter’s permanentresidence application in about March 2017.

Therefore, at present, the Plaintiff cannot legally work in Canada and cannot receive anyassistance from government programs. [11] The Plaintiff applied for entry into Canada on humanitarian grounds in November 2017. The Plaintiff testified that if she issuccessful in her application, she expects to obtain a work permit in 7-12 months. [12] Anna Kuranicheva is a staff immigration lawyer with the Edmonton Community Legal Centre. Ms. Kuranicheva is assistingthe Plaintiff in her immigration matters. Ms. Kuranicheva’s evidence was given after the Plaintiff waived privilege.

She did not giveexpert evidence, but rather information to assist the court in understanding the Plaintiff’s immigration status. Ms. Kuranicheva outlinedthe Plaintiff’s situation, the process involved in her current application, and the anticipated timing. III. The Parties’ Means [13] The Plaintiff’s income in 2013 was $6,930, in 2014 it was $18,804.50, and in 2015 it was $19,726.04. In 2016, her totalincome was $5,212.48. The Plaintiff had previously worked at a convenience store. When she obtains a work permit, her previousemployer would like to rehire her; she would receive the minimum wage.

She admitted to working without a valid permit between aboutDecember 29, 2016 and January 10, 2017, but does not want to jeopardize her immigration application by doing this and testified that shehas not worked since then. [14] The Plaintiff has no income. She lives with, and is reliant upon, a friend for food and shelter. She had savings of about $3,000at one time, which has been depleted. She has about $2,000 in savings at present. [15] The Defendant works as an electronics technician. The Defendant’s annual income for 2016 was $18,658.42. In 2015, it was$19,475.

The Defendant’s paystub to November 10, 2017 shows a year-to-date amount of $20,526.89, which can be extrapolated toabout $24,000. IV. The Parties’ Positions [16] The Plaintiff seeks ongoing and retroactive spousal support (to March 1, 2017) in the sum of $550 per month pursuant to s 15of the Divorce Act, RSC 1985, c 3. [17] The Defendant took the position that the Plaintiff is not entitled to spousal support on any grounds. However, if the Courtfinds entitlement, he stated that he would be able to pay $50 per month.

V. The Law [18]

Section 15.2 of the Divorce Act provides:

(1) Spousal support orderA court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or tosecure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support ofthe other spouse. ...

(4) FactorsIn making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition,means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. ...

(6) Objectives of spousal support orderAn order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [19] Entitlement to spousal support can be based on compensatory, non-compensatory, or contractual grounds: Bracklow vBracklow, (SCC), [1999] SCJ No 14. [20] In argument, the Plaintiff’s counsel focused her submissions on the non-compensatory ground for support, but the Court isrequired by the evidence and arguments at trial to address the impact of the commitment made by the Defendant in the sponsorshipagreement. VI.

The Immigration Sponsorship Arrangement [21] The application to sponsor, sponsorship agreement and undertaking that was purportedly provided by the Defendant in favourof the Plaintiff’s application for permanent residence was entered as an exhibit in these proceedings. Signed documents were not tenderedas evidence. However, the Plaintiff’s evidence is that the unsigned documentary exhibit represents what was provided to the governmentauthority and was completed with the assistance of an immigration consultant or some other individual with experience or expertise.

TheDefendant testified that he had in fact completed the sponsorship application. He did not take issue with the validity of the exhibit, whichwas entered with consent of both counsel. Two key portions of the application documents are the Undertaking by Sponsor and theSponsorship Agreement. The

preamble to the Sponsorship Agreement indicates that the sponsor must enter into the Agreement with theperson to be sponsored, and the sponsor’s spouse is referenced in the document as one of the parties to whom this applies. [22] It states: I undertake to provide for the basic requirements of the sponsored person and his or her family members who accompany him or her toCanada, if they are not self-supporting.

I promise to provide food, clothing, shelter, fuel, utilities, household supplies, personalrequirements, and other goods and services, including dental care, eye care, and other health needs not provided by public health care. Iunderstand that the money, goods or services provided by me must be sufficient for the sponsored people to live in Canada. I promise that the sponsored person and his or her family members will not need to apply for social assistance. I make these promises so that the sponsored person and his or her family members listed on this undertaking can be admitted to Canadaas permanent residents.

I understand that the sponsored person and his or her family members will be admitted solely on the basis of theirrelationship to me (as sponsor) and that they do not need to have the financial means to become established in Canada.

I understand that the validity period of this undertaking begins on the day on which the sponsored person enters Canada if that personenters Canada with a temporary resident permit or, if already in Canada, on the day on which the sponsored person obtains a temporaryresident permit following an application to remain in Canada as a permanent resident, and in any other case on the day on which thesponsored person becomes a permanent resident. The length of the undertaking will vary according to the relationship of the sponsoredperson and his or her family members to me (as sponsor) and their age and it ends:

A. if the sponsored person is my spouse, common-law partner, or conjugal partner, on the last day of the period of 3 years following theday on which they become a permanent resident; ... I understand that the undertaking remains in effect no matter what may change in my life.

For example, if I am divorced, change jobs,become unemployed, and/or go back to school, I will still be responsible to the sponsored person and his or her family members lamsponsoring or for whom I am co-signing. [23] The relevant sections of the Sponsorship Agreement are: As sponsor or co-signer, I promise to provide the sponsored person and his or her family members’ basic requirements for a period thatbegins the day on which the sponsored person enters Canada with a temporary resident permit or, if already in Canada on the day onwhich the sponsored person obtains a temporary resident permit following an application to remain in Canada as a permanent resident,and in any other case on the day on which the sponsored person becomes a permanent resident and ends: A. if the sponsored person is the spouse, common-law partner, or conjugal partner of the sponsor, on the last day of the period of 3 yearsfollowing the day on which they become a permanent resident; ...

I promise that financial obligations or other personal circumstances over the applicable period referred to above will not prevent mefrom honouring this agreement and the sponsorship undertaking I signed or co-signed; ... I promise to respond promptly to requests for help from the sponsored person and his or her family members by giving money, buyingitems or providing services for their living expenses. ... An undertaking is unconditional and may not be terminated.

Under no circumstances does the granting of Canadian citizenship,divorce, separation or relationship breakdown, financial deterioration or moving to another province cancel the undertaking. [24] The case law indicates that a sponsorship agreement is relevant to the issue of spousal support (Singh v Singh, 2013 ONSC6476) but the existence of a sponsorship agreement does not negate the need for an analysis of the statutory factors and objectives andother considerations to determine entitlement, quantum, and duration of spousal support (Carty-Pusey v Pusey, 2015 ONCJ 382 at para48).

In fact, it has been held that Divorce Act spousal support obligations are “separate and apart” from sponsorship obligations: Gossen vGossen, 2003 NSSF 7 at para 63 (NSSC Family Division). [25] In Kuznetsova v Flores, 2016 ONCJ 203 , [2016] OJ No 1912, the husband was a permanent resident of Canada andmarried the wife in 2013. He sponsored the wife’s immigration application and gave an undertaking during the course of that applicationto “provide for the [wife]’s basic needs (including food, shelter and clothing) for three years, once she became a permanent resident ofCanada”.

The couple had a child, the wife’s work visa expired in 2014, and she was wholly dependent on the husband. The partiesseparated in 2015 and the husband withdrew the sponsorship application, rendering the wife unable to work in Canada. She had appliedfor permanent residency based on humanitarian and compassionate grounds. The Court held: Although an immigration sponsorship agreement is one factor to be considered in assessing spousal support, it is not determinative of theissue. It was found to be a strong factor in favour of ordering spousal support in Camilleri v. Camilleri, (ON SCDC), [2001] O.J. No. 2602 (Ont.

Div. Ct.); Carty-Pusey v. Pusey, 2015 ONCJ 382 (Ont. C.J.); Javed v. Kaukab, 2010 ONCJ 606 (Ont. C.J.)4 and Gutierrez v. Petten, 2011 ONCJ 549 (Ont. C.J.). Here, the mother remained in Canada in reliance of the father's promise to sponsor her to become a permanent resident. See: Niranchan vNadarajah, 2015 ONCJ 149 , [2015] O.J. No. 1400 (Ont. C.J.); Carty-Pusey v Pusey, supra. The father promised to support themother for three years and signed an undertaking to Citizenship and Immigration Canada to do this once she became a permanentresident.

He only withdrew his sponsorship application after he was charged with assaulting the mother and she wouldn't reconcile withhim. The mother might already be working towards self-sufficiency if the father hadn't withdrawn the sponsorship application. Thisaction placed the mother and the child in a vulnerable position as the mother had no legal status in Canada and couldn't work. [26] Nathoo v Nathoo, 2005 ABQB 175 , [2005] AJ No 255 involved a short-term marriage in which the husbandsponsored the wife’s immigration application.

Martin, J (as he then was) held: 6 The authorities are clear that in determining entitlement to spousal support, and perhaps also its duration, the existence of asponsorship agreement is a relevant factor to be considered, together with the general principals [sic] applicable to spousal maintenance:Anilevska v Meheriuk, [2001] A.J. No. 584, 2001 ABQB 378; Achari v. Samy (2000), 9 R.F.L. (5th) 247, [2000] B.C.J. No. 1651, 2000BCSC 1211; and Segal v. Qu (2001), (ON SC), 17 R.F.L. (5th) 152 (Ont. Sup.

Ct.). 7 With regard to the provisions of the Divorce Act which addresses the considerations to be taken into account in making an award forspousal support, (s. 15, and in particular s. 15.2(6)) it is usually difficult to find that the breakdown of such a short term (86 days)childless marriage has resulted in economic disadvantage. However, in this case, Ms. Nathoo left her brother's home in Texas to comehere to live with her husband. In so doing both she and the Government of Canada were led to believe by Mr.

Nathoo that no matter theprovisions of the Divorce Act, he would support her for at least 3 years ... . 8 With the breakdown of the marriage, Ms. Nathoo is apparently without the means or income to enable her to set up a residence of her

own. It further appears that she has not yet been able to become self-sufficient, although notwithstanding her husband's sponsorshippledge, that remains her obligation. Thind v. Thind (1988), (BC SC), 14 R.F.L. (3d) 165 (B.C.S.C.); and Anilevska v.Meheriuk, supra. 9 These two factors are considerations upon which to order spousal support pursuant to s. 15.2(6) of the Divorce Act. The sponsorshippledge further supports that obligation.

Indeed, in my opinion, where as here, the sponsored spouse is destitute and at risk of going onsocial assistance, that pledge, by itself and without reference to the Divorce Act, fixes the pledger with the obligation to honour hisundertaking. 10 Therefore, in view of Ms. Nathoo’s current predicament and her husband's promise to support her and keep her off social assistance,I find that she is entitled to spousal support. [27] Similarly, in Gidey v Abay, (ON SC), the Court held that an immigration sponsorship arrangement was“the most significant factor influencing the issues of entitlement”.

The Court confirmed that “the existence of an immigrationsponsorship agreement is a relevant factor in determining entitlement to spousal support”. [28] The pledge of support represents a commitment made by the Defendant and in reliance on that commitment, the Plaintiffremained in Canada to seek permanent residency. Absent that commitment, she must obtain a work permit through a different channelwithout the Defendant’s support. VII.

Non-Compensatory Basis for Spousal Support [29] The Sponsorship Agreement is therefore a factor in determining entitlement to spousal support, particularly in a marriage asshort as this one. The evidence also establishes entitlement on a non-compensatory basis. The Plaintiff has a need for support and theDefendant has an ability to pay.

The immigration sponsorship evidences the financial interdependence that the parties expected of theirrelationship. [30] Although this was a relationship of short duration and each party worked during the marriage (sharing household expensesand duties during cohabitation), the Plaintiff is not presently able to work legally. She has no means except for a small amount of savingsand relies on third parties for her basic needs. She is attempting to remedy the situation by following the steps needed to secure a workpermit and gave evidence that she only seeks support until September 2018.

Her budget shows expenses of $926.94 per month. I find thisto be reasonable. It has no discretionary items in it. [31] The Plaintiff continues to experience a significant drop in her standard of living from the marital standard. The breakdown ofthe marriage has now left her in deleterious financial circumstances. She has suffered an economic disadvantage and hardship as a resultof the breakdown of the marriage. [32] The Divorce Act also requires spousal support orders to “in so far as practicable, promote the economic self-sufficiency ofeach spouse within a reasonable period of time” (Divorce Act, s 15.2(6)(d)).

The Plaintiff has a duty to pursue self-sufficiency and wantsto do so, but is legally prohibited from doing so at this point. She has taken reasonable steps to obtain a work permit, and has enlistedhelp in navigating this complex and demanding process. She expects to be in a position to work by September 1, 2018, and has requestedsupport to run until that time.

She plans to return to her previous employment and has received positive signals from that employer in thatregard. [33] Once the Defendant’s sponsorship of the Plaintiff was withdrawn, she applied for permanent residence on humanitarian andcompassionate grounds. Her application was entered into evidence during the course of the proceedings. It was submitted toImmigration, Refugees and Citizenship Canada on or about November 14, 2017, after a lengthy process of information gathering anddocument preparation.

It appears from the evidence that a 6-12 month time frame for the application to be processed is realistic andconsistent with the duration of spousal support requested by the Plaintiff. VIII. Quantum and Duration of Spousal Support [34] The Defendant is employed and has had a consistent income for the last few years. His income is modest, as is his budget ofexpenses (which I find to be reasonable), which shows annual expenses estimated at $21,240. He has no assets of any significance. Basedon an annual income of $24,000, the Defendant has a surplus of $2,760 or $230 per month.

The evidence shows that there are somediscretionary expenses in the Defendant’s budget. The Defendant admitted to gambling about $60 per month. He drinks occasionally andsmokes. He also has an amount in his budget for vacation ($100 per month), and testified that he intends to take a trip to the Philippines,though he has not done so for more than ten years. He occasionally supports family in the Philippines and sometimes buys moreexpensive food.

He testified that he could reduce his food and household supply item from the amount stated in his budget, which was$400. [35] It is reasonable to reduce the food and household supplies item by $100, eliminate one half of the vacation item of $100 (to$50 given its speculative nature), and reduce the personal hygiene and clothing amounts by $25 each. This amounts to $200 per monthavailable as spousal support (with the attendant tax consequences to each party).

Adding in the surplus amount referred to above, I findthat the appropriate quantum of spousal support is $430. [36] Given the short duration of the marriage and the needs and means of the parties, I am departing from the outcomes providedby the Spousal Support Advisory Guidelines. [37] The Plaintiff requested spousal support for a fixed term ending in September 2018 by which time she hopes to have aresolution to her work permit issues.

Section 15.2(3) of the Divorce Act allows the Court to “make an order under subsection (1) or an

interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just”. IX. Decision [ 38 ] The Defendant shall pay spousal support to the Plaintiff in the sum of $430 per month commencing September 1, 2017, payable on the first day of each month, ending with the payment due on September 1, 2018.

The amounts paid by the Defendant under Khullar, J’s August 8, 2017 Order will be credited against the amount ordered in this Judgment. [ 39 ] If prior to September 1, 2018, the Plaintiff is able to work legally in Canada and obtains employment, or is no longer residing in Canada, the Defendant’s spousal support obligation will terminate. [ 40 ] As mentioned above, the parties both indicated that they would not oppose the Court’s discretion being exercised in favour of making this a final Order.

I will exercise that discretion: this is to be considered a final Order on the issue of spousal support between the parties. [ 41 ] Given the mixed success of the parties, and their respective limited resources, the parties shall bear their own costs. Heard on the 24 th day of November, 2017. Dated at the City of Edmonton, Alberta this 22 nd day of December, 2017. S.N. Mandziuk J.C.Q.B.A. Appearances: Elizabeth Berg Edmonton Community Legal Centre for the Plaintiff Emem Madu Tisel Law Office for the Defendant