Omonova v Omonov, 2019 ABQB 993

Court of Queen’s Bench of Alberta Citation: Omonova v Omonov, 2019 ABQB 993 Date: 20191223 Docket: 4803 153483 Registry: Edmonton Between: Oksana Matnazarovna Omonova Plaintiff - and - Tolibjon Solievich Omonov Defendant _______________________________________________________ Memorandum of Case Management Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________ I. Introduction [ 1 ] The parties are former husband and wife. They have two adult children.

They have a history in the courts, some of which can be gleaned from Omonova v Omonov , 2013 ABQB 384 ; 2014 ABQB 660 ; 2017 ABQB 309 , and 2019 ABQB 637 . [ 2 ] Previous contested family law proceedings and case management have not brought this couple litigation peace. II. Background [ 3 ] The parties were divorced January 31, 2011, after a 20-year marriage. A matrimonial property ruling December 21, 2011 (oral reasons only) divided their matrimonial property. Ms. Omonova received spousal support commencing January 1, 2011.

[ 4 ] The divorce judgment and matrimonial property ruling did not end the litigation between the parties and in accordance with the practice of our court I was assigned the role of Case Management Justice. [ 5 ] In June 2019 we had another case management conference at which time Mr. Omonov advised that due to government cutbacks he was in danger of losing his contract position at the U of A. In the Order arising out of that hearing, granted August 14, 2019 (“the August Order”), I imposed a leave requirement for further applications except as designated in that Order, including giving Mr.

Omonov leave to apply to review his support obligations if his employment risk materialized. [ 6 ] This risk did materialize resulting in this hearing. III. Issues Requested to be Reviewed and Issues under Review [ 7 ] In his application, Mr. Omonov makes the following claims for relief:

i) Termination of his obligation to pay spousal support to Ms. Omonova, effective November 1, 2019; ii) An order setting his Guideline income at $29,302 per year (based on 52.14 weeks at $562 per week) and varying the parties' shares of

section 7 expenses as of November 1, 2019, so that he will pay 32.87% and Ms. Omonova will pay 67.13%, based on no spousal support being paid by him; iii) Payment of all arrears of child support by Ms. Omonova in a lump sum, rather than in the monthly instalments of $100 as directed in the August Order. He says that as of December 1, 2019, the outstanding balance of arrears was $1,417: Affidavit – Change Child and Spousal Support of Mr. Omonov (“Omonov Affidavit”), p 8, para 25; iv) Payment of spousal support by Ms. Omonova commencing November 1, 2019, "calculated according to the same formulae that were previously used in our case": Omonov Affidavit, p 8, para 25;

v) If Ms. Omonova objects to paying spousal support, an order that she be declared ineligible to receive spousal support from Mr. Omonov in future; and vi) Financial disclosure from Ms. Omonova, of her Statement of Income, Assets, Liabilities and Monthly Budget. [ 8 ] The issues which I am considering in this Case Management Decision are the following: • What if any changes should occur to the amount of spousal support paid by Mr. Omonov to Ms. Omonova? • Should Ms. Omonova be obliged to pay support to her ex-husband? • If my rulings result in a decrease in spousal support received by Ms.

Omonova, should there be a decrease in her obligation to support her son? IV. The Positions of the Parties [ 9 ] The position of Mr. Omonov is that his spousal support was based on his income. As a result of his recent lack of employment the income is greatly diminished from over $60,000 per year to less than $30,000, which is what he will receive on employment insurance. He claims to be seeking employment but has not yet found a job. [ 10 ] The position of Mrs. Omonova begins with her continued objection to me as a case management Judge describing in colourful language her assessment of my skill set and ability.

She sums up by indicating that, “I feel discriminated and abused at the Court of Queen’s Bench constantly for many years and countless different perverted ways”: Affidavit of Ms. Omonova (“Omonova Affidavit”), p 1, para II(1). She again asserts that she does not receive spousal support which is in fact incorrect. She receives spousal support (it is what the applicant wishes to cancel at this time due to his unemployment), except that her obligations to support her university age son mask this reality. [ 11 ] On the specific topic of Mr. Omonov's application, her opposition appears to be based on the following:

i) Mr. Omonov did not provide documentation "to prove the emergency" and there is no emergency. In fact, she alleges that "Mr.

Omonov's 'emergency' idea is developed by the Judge as one more creative way of making him free of his obligation to pay [her] Spousal Support": Omonova Affidavit, p 2, para 7(d), and p 4, para IV(1); ii) Sherzod no longer requires child support, he no longer wants to see her and said that he does not want her money and so child support should cease effective May 1, 2018: Omonova Affidavit, p 3, para III(1); iii) She was recently in a car accident, is exhausted, and she "[has] to go for long term disability"; iv) There is no documentation to show that Mr. Omonov is unemployed;

v) She requires evidence of his attempt to find employment: Omonova Affidavit, p 4, para IV(4); and vi) She has questions regarding Mr. Omonov's available assets: Omonova Affidavit, pp 4-5, para 4. V. Legal Analysis

1. Setting the hearing date without Ms. Omonova’s approval [ 12 ] Ms. Omonova resisted the setting of this hearing date. She indicates that no date should be set without her consent. Based on the Alberta Rules of Court and the orders in effect in this case either party must obtain my prior permission to advance a case management application however they do not need to obtain the consent of the other party. I assure Ms. Omonova that the date was based on my scheduling and not specifically on Mr. Omonov request.

He indicated that he requested any immediate date and I gave him a date in which I would be sitting in Edmonton. I understand that the Case Management Coordinator contacted both parties regarding the proposed date but did not receive a response from Ms. Omonova. I also offered Ms. Omonova the opportunity to appear by phone if her injuries from her motor vehicle accident prevented her from conveniently coming to the court. When Ms. Omonova did not respond favourably to either of the two days I left the matter for the earlier date. 2. Support a.

The Income of the Parties [ 13 ] A proper foundation for considering spousal support, the apportionment of

section 7 expenses as well child support for the adult child requires a determination of the parties’ income. [ 14 ] In June 2019 in an extensive case management hearing I adjusted all of these matters for 2019 with the possibility of some retroactive review based on change of circumstance. The spousal support paid by Mr. Omonov to his ex-wife was based on an income of around $80,000.

If he does not get a job early in the new year, his ability to pay spousal support on a common-sense basis and a reasonable assessment of the guidelines would result in his obligation to pay spousal on a $30,000 per year income being significantly less than the current amount being paid. [ 15 ] However, considering that Mr. Omonov did not lose his job until late 2019, there would be no reason for me to make any change to his spousal support obligation prior to the commencement of 2020. [ 16 ] The issue then becomes, how much less than the current spousal support of $450.00 per month should Mr. Omonova pay. Ms.

Omonova is getting support based on the long-term disadvantage she incurred in the marriage. Ending the spousal support is simply not in the cards. However, it would not be unusual in light of a period of unemployment for me to grant a stay of enforcement of the spousal support for a 90-day period of time. [ 17 ] There is another pragmatic approach that I can utilize based on the pluses and minuses of the calculation of adjustment between the parties which occurred in the August Order. Ms. Omonova is eroding a certain arrears claim by a payment of $100 per month.

About $1300.00 of this amount still remains outstanding. Mr. Omonov has a short-term employment situation that may resolve itself within the next 90 days. It seems to me that a better approach would be to offset Ms. Omonova’s repayment of arrears to Mr. Omonov against the ongoing spousal support. [ 18 ] I do this in this ruling. Starting January 1, 2020, Ms. Omonova’s monthly arrears payments for adjustments to the historic child support shall cease. Based on Mr.

Omonov’s statement that the balance was $1,417 as of December 1, 2019, and assuming that this balance was net of the payment of $100 due on that day, by January 1, 2020, I calculate that this amount will be $1,317. Therefore, at Mr. Omonov’s current spousal support rate, this underpayment will provide 2.9 months of spousal support. [ 19 ] By my calculations the offsetting of Ms. Omonova’s arrears will provide Mr. Omonov’s support payments for the months of January and February and most of March. [ 20 ] Ms. Omonova has some concerns about Mr.

Omonov’s diligence in seeking other employment, and his material filed with us is very thin on what his unemployment benefits will be and what effort he has made to look for other employment. In his next employment he may not be able to use his PhD that he obtained in science; just like Mrs. Omonova is unable to use her teaching certificate. She has made a new life for herself in retail and Mr. Omonov must broaden his search for employment. [ 21 ] I therefore do not cancel Mr. Omonov’s support obligation at this time. However, I will direct that from January 1, 2020, onward until Ms.

Omonova’s arrears of child support are repaid, Mr. Omonov’s support will be offset against the money that Ms. Omonova owes. To summarize this calculation, it is expressed as follows: Ms. Omonova is deemed to have repaid the arrears of child support at the rate of $450 per month commencing January 1, 2020 and continuing until the arrears have been repaid in full. Any shortfall in spousal support paid thereafter will be addressed at the next hearing of this matter, as set out below. b. The Child Support for the Son [ 22 ] This raises a second issue: should the child support paid by Ms.

Omonova for the benefit of her son (but currently paid to Mr. Omonov) be reduced, if her total income including spousal support is reduced. As Ms. Omonova’s

section 3 child support obligation is calculated on the basis of her income without reference to any spousal support she may receive, her

section 3 child support will not change if her spousal support is reduced: Federal Child Support Guidelines ,

Schedule III, s 3(a) . In any event, for so long as Ms. Omonova’s arrears payments are offset against Mr. Omonov’s spousal support obligation, Ms. Omonova will be taken to have received spousal support but, as with her ongoing child support obligations, the offsetting of the amounts will affect the net amount in hand. Mr. Omonov’s affidavit indicates that their son is still a student and his tuition is going up. I am prepared to accept this. However, if Mr.

Omonova continues to be unemployed an adjustment will have to occur to the amount of child support he is receiving, not in the basic support paid [section 3 support] but in the apportionment of expenses. [ 23 ] These changes are not as yet ascertainable. This order cannot resolve the issues presented at this current time because of the

uncertainty both as to how long Mr. Omonov will be unemployed and what his new position will bring about. It is clear however that both the child support and spousal support orders have to be made with a longer-term view than simply made on the basis of short-term panic caused by job loss. I make no change to either the spousal support or the child support at this time except for the ruling that the spousal support will erode the underpayment historically found in favour of Mr. Omonova against Ms.

Omonova. [ 24 ] This then requires that the parties have an opportunity to return before me in a few months time and I think that setting a date in April or May of 2020 would be appropriate for me to reconsider ongoing issues of child support, spousal support, and

section 7 support requirements. The parties may contact the Case Management Coordinator in March 2020 for that purpose. Communication for this sole purpose shall not constitute a breach of the August Order as it relates to communication with the Court and staff. However, no date will be set unless the party requesting it provides a Disclosure Statement in accordance with the disclosure requirements set out in the Alberta Rules of Court , Family Law Practice Note 2 and Notices to the Profession and Public, which will as a matter of convenience be set out in the court order that follows from this ruling. 3. Ms.

Omonova’s Obligation to Pay Spousal Support [ 25 ] Historically, I set Mr. Omonov’s spousal support obligation at $275 per month on an indefinite basis. During prior case management conferences this amount was increased to $400 and then $450 per month. Both Mr. Omonov and Ms. Omonova’s income have increased roughly in the same proportion.

Despite this, spousal support was set out based on the long-term marriage of this couple and while it has now continued for nearly 10 years there is still a compensatory element to the spousal support. [ 26 ] However conversely, there is not now nor can there ever be an obligation on the part of Ms. Omonova to pay spousal support to Mr. Omonov. Spousal support is not payable in circumstances such as this: a lack of employment or job opportunity which flows from the economic environment, not from anything that Mr. Omonov experienced in the marital relationship. During their marriage it is clear that Mr.

Omonov was absent from their home for many years while he pursued his PhD. He received that degree in large part because of the support of Ms. Omonova, and simply because he is unemployed he is not entitled to spousal support from her. He misunderstands completely the circumstance for which spousal support was ordered, and the reverse does not apply. Mr. Omonov’s application to receive spousal support is dismissed. VI. Costs [ 27 ] Both parties want costs against the other. Neither party is awarded costs. VII. Judgment

Summary [ 28 ] The spousal support payable by Mr. Omonov to Ms. Omonova remains at $450 per month. However, starting January 1, 2020, Mr. Omonov’s obligation to pay the support will be paid initially by monthly offsets at the rate of $450 per month against Ms. Omonova’s outstanding arrears of child support until such time as she has fully paid all of her arrears. Thereafter, Mr. Omonov’s obligation to pay further spousal support shall be suspended until such time as the parties are again before me to address the issues of child and spousal support, as set out below. [ 29 ] Either or both parties may approach the Case Management Coordinator in March 2020 to

schedule a hearing to review in more detail Mr. Omonova’s job-related effort, the progress of their child in University and the apportionment of

section 7 costs based on changes to the income. [ 30 ] No change is contemplated for the remainder of 2019. Dated at the City of Edmonton, Alberta this 20 th day of December 2019 A.W. Germain J.C.Q.B.A. Appearances: O.M. Omonova Appeared on her own behalf for the Plaintiff

T.S. Omonov Appeared on his own behalf for the Defendant