Brar v Brar, 2018 ABQB 977

Court of Queen’s Bench of Alberta Citation: Brar v Brar, 2018 ABQB 977 Date: 20181128 Docket: FL03 53328 Registry: Edmonton Between: Amandeep Brar Plaintiff/Applicant - and - Naviran Kaur Brar Defendant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice C.L. Kenny _______________________________________________________ Introduction [ 1 ] This matter was heard by me as a special application dealing with a number of issues. I issued my decision on several of the issues at the conclusion of the hearing. I reserved my decision on the issue of spousal support.

Background [ 2 ] The parties were married in 1995 and divorced in 2005. They have three children. The oldest one is in post-secondary education and will finish that program in the spring of 2019. The second oldest is finished school and no longer considered a child of the marriage. The youngest child is currently 14 years of age and residing with the mother. [ 3 ] The Divorce Judgment issued in Ontario in 2005 provided: 5. Commencing on June 1, 2005 and on the first day of each and every month, the Respondent (father) shall pay to the Applicant (mother) for her support the sum of $400 per month, unless one of the following occurs:

a) the applicant remarries; or

b) the applicant cohabits with another man and has become a spouse pursuant to the provisions of

section 29 of the Family Law Act; or

c) the applicant dies. Issue in dispute [ 4 ] The father seeks an end to spousal support. The mother wishes the spousal support to continue indefinitely unless one of the above conditions applies. [ 5 ] It should be noted that the Spousal Support Advisory Guidelines did not exist at the time of this divorce. I asked counsel whether they had prepared any information using the Guidelines to assist the Court however neither had done so. History Related to Spousal Support [ 6 ] The parties were married in India in 1995. Both immigrated to Canada in 1996, initially living in Ontario.

All of the children were born in Canada however, the oldest two children, from the time they were babies, lived with the husband’s parents in India. It was felt they would have a better lifestyle there as the parties’ lifestyle in Canada at that time was unpredictable. The parties would go to visit the children once a year in India. The older two children attended boarding school in India and remained there until 2008. [ 7 ] The parties did not have regular child care responsibilities from the date of the marriage in 1995 until the birth of the youngest child in 2004, one year before the divorce.

The husband did odd jobs until he got his truck driving license and could earn more income. The wife chose to stay at home. [ 8 ] After the divorce in 2005, the husband relocated to Edmonton, Alberta. In 2006, the wife and the youngest child also moved to Edmonton and moved in with the husband. The parties continued to live separate and apart in the same residence but it was felt that it would be beneficial to the children to have their parents close to them and supportive of them.

In 2008, the oldest two children moved back to Canada from India and resided with the parties. [ 9 ] Child and spousal support was not provided to the wife in accordance with the Divorce Judgment during this time as the husband was working and paying all of the household expenses. The wife had free access to all of the household finances, was collecting the Child Tax Credits as she was entitled to do as a divorced person, and was helping to do all of the financial book keeping for the husband’s trucking business. [ 10 ] In 2016, the husband moved out of the home and remarried.

The wife registered the Divorce Judgment with maintenance enforcement indicating that the husband had not paid the child and spousal support under the Order for many years. Position of the Parties [ 11 ] The wife takes the position that there is no change in circumstances and that the husband is required to continue to pay spousal support indefinitely unless one of the events identified in the Divorce Judgment occurs. She says that the 10 years during which she resided in the same house with the husband after the divorce made her dependent and she is unable to become self-sufficient.

She says that the court should consider that 10 year period as continued co-habitation as spouses and consider that the “marriage” therefore lasted 20 years. [ 12 ] The husband takes the position that he has paid more than could ever be expected to support the wife after such a short marriage. The marriage was less than 10 years, the wife had no child care responsibilities until the last year of the marriage, and the husband continued to support the wife and the children from the time of the divorce in 2005 until the present, a total of 13 years.

Discussion [ 13 ] There must be a material change in circumstances before a variation of a spousal support order can be made. A material change is one, that if known at the time, would likely have resulted in different terms. [ 14 ] I am satisfied that there has been a material change in circumstances since the original order. It was not contemplated at that

time that the wife and the children would reside with the husband in a home provided by him at that time. This happened even though the parties were divorced and the wife held herself out to be a single person. The parties were separated although they lived in the same home for the benefit of the children. Rather than pay the amount under the Divorce Judgment to the wife each month, the husband instead covered all of the expenses of the family. The wife had free access to all accounts and income of the husband throughout this period.

It is clear that between 2006 and 2016, the husband paid the amounts required of him under the Divorce Judgment for the family. [ 15 ] The Spousal Support Advisory Guidelines provide a useful check on whether or not the husband has met his spousal support obligations. Under the Guidelines, the spousal support obligation would have been between 5 years (half the length of the marriage) and 17 years (the youngest child graduating from school). I looked at what the ranges would be using the divorce date of 2005.

I used an income to the husband of $48,000 per annum as set out in the Divorce Judgment although it was slightly higher than that in 2016 and 2017. Using that scenario, the spousal support that should have been paid under the Guidelines even at the high end was significantly less that what was ordered under the Divorce Judgment. I am satisfied that the husband has exceeded any obligation that he would have in this case for the payment of spousal support. [ 16 ] I also take into consideration that there is no evidence that the wife was unable to become self- supporting over the last 13 years since the divorce.

That is an obligation that she has. Two of the children have finished high school. Only one child remains at home, age 14. [ 17 ] The spousal support payments will end effective December 1, 2018. Heard on the 24 th day of October, 2018. Dated at the City of Edmonton, Alberta this 28 th day of November, 2018. C.L. Kenny J.C.Q.B.A. Appearances: H. Kim Doniger, H. Kim Doniger Professional Corporation for the Plaintiff/Applicant Tracey L. Bristow, Finlay Maxston Law for the Defendant/Respondent