Nahaynyk v Gerk, 2021 ABQB 174

Court of Queen’s Bench of Alberta Citation: Nahaynyk v Gerk, 2021 ABQB 174 Date: 20210304 Docket: 4804 011591 Registry: Grande Prairie Between: Ol'ha Nahaynyk Plaintiff - and - Conrad Wayne Gerk Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ The Application before the Court [ 1 ] Mr. Gerk has applied to terminate his child support obligation in relation to EN, retroactive to the date that the obligation was imposed by Order of this Court dated December 12, 2018. [ 2 ] Mr.

Gerk also seeks to have the resulting refund of child support applied to his ongoing spousal support obligations, which arose pursuant to an Order of this Court dated July 27, 2020.

Background [3] In her Affidavit sworn December 6, 2018, Ms. Nahaynyk stated, in part, “Since [EN] was born, the Defendant has told me that [EN] belongs to him because he paid for her. I believe the Defendant wasreferring to the fact that he paid for me to undergo In Vitro Fertilization to become pregnant with [EN]. ... In early 2009, the Defendant and I met through an online dating website. In September 2009, the Defendant came to Ukraine for 2 weeksto meet me in person, and we decided that I would come to Canada to live with the Defendant.

The Defendant and I spent the next fewyears trying to get me to Canada on a Visitor Visa and a Work Visa, but we were unsuccessful”. [4] The Affidavit went on to detail various trips the parties took and gifts Mr. Gerk bought her up to November 19, 2015, whenthey married in Cyprus. Ms. Nahaynyk stated: “The Defendant then tried to bring me to Canada on a Marriage Visa and sponsored me for Permanent Residence.

As part of hissponsorship, I believe the Defendant promised to support me for 3 years”. [5] The Affidavit continued with the following in relation to her pregnancy: “While the Defendant was in the process of trying to bring me to Canada, we decided that I would undergo In Vitro Fertilizationprocedures in Ukraine because it was less expensive to do so there than in Canada. The Defendant and I wanted to have a baby together,but we knew that it would be difficult to conceive naturally because the Defendant was already 65 years old at that time.

As such, in2016, I underwent laparoscopy and artificial insemination procedures multiple times, but they were unsuccessful. In the summer of 2017,I underwent In Vitro Fertilization, but it was unsuccessful. In January of 2018, I underwent In Vitro Fertilization again, and it was finallysuccessful, and I became pregnant with [EN]. The Defendant paid for all of the laparoscopy, artificial insemination, and In Vitrofertilization procedures. On July 17, 2018, I finally arrived in Canada. I became a Permanent Resident on that same date.

Prior to myarrival in Canada, the Defendant told me that he wanted me to be a stay-at-home mother to provide care for our child when she wasborn”. [6] On December 12, 2018, this Court ordered Mr. Gerk to pay child support of $848 per month and spousal support of $1916per month, both commencing January 1, 2019. It also ordered Mr. Gerk to have parenting time with [EN]. [7] On January 21, 2019, Mr. Gerk swore an affidavit in which he deposed that he and Ms. Nahaynyk married on November 18,2015, while Ms. Nahaynyk was still resident in Ukraine. He further deposed that Ms.

Nahaynyk came to Canada on a “married visa” and“that they set up our house and began life”. He confirmed that she was pregnant, without providing any details concerning thatpregnancy. He also deposed that “[EN] our little girl was delivered on Septembery 7, 2018”. After explaining that their relationshipquickly deteriorated, Mr. Gerk indicated that he “filed a [sic] application in Provincial court for joint custidy [sic] of our baby [EN]”. Healso deposed that he requested “shared gaurdianship [sic] of our baby [EN]”.

He ends his Affidavit with the following: “I want her to feel and enjoy my love and affections and to know how her father is. I would like to have [EN] with me every other weekand I will travel to get her. I hope the courts see that I am devoted to my baby and will care for her. She is my life now.” [8] On March 1, 2019, Ms. Nahaynyk swore an affidavit. She attached to that Affidavit a copy of what appears to be a textmessage from Mr. Gerk to Ms. Nahaynyk. It reads, in part, as follows: “...As for your eggs we will have to wait and see what will happen when you come to Canada.

You only need 1 egg to get pregnant andto have children. ...I hope this doctor knows what he is doing..I want all ready so when you can get married or come here we can apply toget you visa to stay with me forever.” [9] In her Affidavit sworn May 9, 2019, Ms. Nahaynyk stated that “there is one child of the marriage, namely [EN]”. [10] In her Affidavit sworn January 13, 2020, Ms. Nahaynyk swore that “...Conrad Wayne Gerk is not a biological father to[EN]...”. She went on to state that “...the Defendant knew that he is not a biological father when we put his name at [sic] the birthcertificate of [EN].

We are separated now and there is no need of his name at [sic] [EN’s] birth certificate”. [11] On February 25, 2020, Ms. Nahaynyk applied to have the birth certificate of EN changed by having Mr. Gerk’s name deletedthereon as EN’s father. Mr. Gerk was in agreement with the application and, therefore, the application was granted. [12] On July 27, 2020, I declined to terminate child support pending submissions regarding the relationship between Mr. Gerk and[EN], and receipt of applicable legal authorities in relation to his obligation, or not, to support her. On that same date, Mr.

Gerk’sobligation to pay spousal support was reduced to $1000 per month effective June 1, 2020, to continue for a period of two years, as Ms.Nahaynyk had not filed any response opposing the requested change to spousal support. [13] On November 12, 2020, Mr. Gerk swore an Affidavit which contained the following: “The court order was pronounced to remove Conrad Wayne Gerk’s name out of the birth certificate of [EN]. Which means theRespondent and I don’t have a child of the marriage and don’t have to share the custody and child support”. Analysis [14] Mr.

Gerk relies on s 2(1), 15, and 17 of the Divorce Act; s 11 of the Vital Statistics Act and the Supreme Court of Canadadecision in Chartier v Chartier (SCC), [1999] 1 SCR 242.

[ 15 ] Mr. Gerk argues that he never consummated the marriage and that the parties resided as a family unit for a very short time. He relies heavily on the fact that Ms. Nahaynyk has confirmed that he is not the biological father of EN and it is his impression that deletion of his name from the birth certificate determines that EN is not a child of the marriage, eliminating any obligation that he might have to her. [ 16 ] Whether or not it was Mr.

Gerk’s sperm that was used in the in vitro fertilization procedures that resulted in EN’s birth, it is clear that this process was undertaken after the parties married, with Mr. Gerk’s knowledge, consent and financial support. EN was born during the parties’ marriage. Ms. Nahaynyk’s assertion that this was because the parties wished to have a child together is supported by Mr. Gerk’s own affidavit evidence referred to above. At the time she was born, Mr. Gerk clearly considered EN to be his child, knowing the circumstances of her conception.

He provided her with a home, and then sought joint custody and shared parenting of her. [ 17 ] The fact that the parties’ marriage deteriorated a short time after EN’s birth does not change the fact that she was a child of this marriage and that Mr. Gerk has an ongoing obligation to support her. If shared DNA were a prerequisite to child support, adoptive parents could make a similar argument, as could individuals who acquire an obligation to support a child by virtue of being in loco parentis to that child. [ 18 ] There is no basis upon which to disturb this Court’s December 12, 2018 Order requiring Mr.

Gerk to provide child support to EN. That obligation continues regardless of whether he has exercised the parenting time he sought and obtained in relation to her. [ 19 ] The evidence outlined above does raise concerns with respect to the representations that may have been made to governmental authorities in connection with Mr. Gerk’s sponsorship of Ms. Nahaynyk’s applications for permanent residency in Canada. In addition, his request to have his past child support credited against his ongoing obligation to pay spousal support may be inconsistent with his support obligations under the sponsorship agreement.

These may be matters of interest to the applicable authorities, but they are not matters before this Court. [ 20 ] Before bringing any further applications to reduce or eliminate his child support obligation in respect of EN, Mr. Gerk must seek leave of this Court. Leave may be sought by writing to the Supervising Justice of the Court of Queen’s Bench for the Judicial District of Grande Prairie. Any such application for leave must be accompanied by a copy of these Reasons, and outline the basis on which leave is sought, as well as the evidence to be relied on if leave is granted.

Heard on the 13 th day of August, 2020 and written submissions were received from Mr. Gerk on October 29 th , 2020. Dated at the City of Grande Prairie, Alberta this 4 th day of March, 2021. D.L. Shelley J.C.Q.B.A. Appearances: Ms. Nahaynyk Self- Represented (did not appear) Lola Antonius Antonius Law for the Defendant