Omonova v Omonov, 2021 ABQB 265

Court of Queen’s Bench of Alberta Citation: Omonova v Omonov, 2021 ABQB 265 Date: 20210407 Docket: 4803 153483 Registry: Edmonton Between: Oksana Matnazarovna Omonova Plaintiff - and - Tolibjon Solievich Omonov Defendant Corrected judgment: A corrigendum was issued on April 12, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on April 9, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Judgment of the Honourable Madam Justice A. Loparco

_______________________________________________________ I. Introduction [ 1 ] The parties have a long and acrimonious history in the courts spanning the course of the last decade. There have been numerous reported and unreported decisions: see Omonova v Omonov , 2013 ABQB 384 ; 2014 ABQB 660 ; 2017 ABQB 309 ; and 2019 ABQB 637 . II. Background [ 2 ] The parties were divorced after a long-term marriage. The Honourable Justice A.W. Germain presided over their divorce trial and on December 21, 2011 (oral reasons only), divided their matrimonial property and ordered Mr.

Omonov to pay spousal support commencing January 1, 2011 in the amount of $275 per month, indefinitely (“Original Support Order”). [ 3 ] Due to the high-conflict and ongoing litigation between the parties, Justice Germain was assigned Case Management Justice, a role he continued to act in until the Court of Queen’s Bench recently moved away from case management of family disputes. [ 4 ] During the course of the ensuing years, the quantum of spousal support was increased to $400 per month, and then to $450 per month.

The last variation order, which increased monthly spousal support to $450 per month commencing June 1, 2017 until further order of the Court, was dated May 3, 2017 (“Last Variation Order”). [ 5 ] In the Memorandum of Case Management Decision dated August 14, 2019, cited as 2019 ABQB 637 , Germain J held that the spousal support payable by Mr. Omonov to Ms. Omonova was to remain at $450 per month (“August 2019 Decision”). He further held that the parties continued to owe child support to their adult son Sherzod Omonov (“Sherzod”), who was living on his own. The Court ordered a set off of Mr.

Omonov’s spousal support against the

section 3 child support payable by Ms. Omonova of $507 per month starting September 1, 2019. Therefore, having regard to the offset of child and spousal support and the $200 per month payment towards s 7 expenses, the net amount payable by Ms. Omonova to Mr. Omonov monthly was $257. Ms. Omonova misunderstands this calculation and believes this means she has been paying spousal support to Mr. Omonov. [ 6 ] During a case management meeting on December 20, 2019, Mr. Omonov sought to have his spousal support payments terminated due to the loss of his employment.

In a Memorandum of Case Management Decision filed December 23, 2019 (“December 2019 Decision”), it was determined that Mr. Omonov would be able to set off his spousal support payments against the child support arrears owed to him by Ms. Omonova until her arrears were paid. Once her debt was extinguished, his spousal support payments would be stayed until further order of the Court. MEP continued to calculate the amounts owed during the stay period as arrears. [ 7 ] Mr.

Omonov believes that the stay order meant that he does not owe spousal support for that period of time and asks this Court to order MEP to cancel the accumulated arrears. I have explained to him that a stay is intended to be a temporary order to alleviate enforcement of the support for the expected short-term period of unemployment, but that it does not stop MEP from calculating the amounts as arrears owed. The purpose was to allow him a break from payment until the Court could re-assess the situation when more is known about whether he was able to obtain another job.

Germain J intended to review the situation along with the pending application to vary child and spousal support in a future case management meeting. [ 8 ] Prior to the COVID-19 pandemic, Justice Germain advised the parties that he would allow them to

schedule applications before him to determine: 1) whether and what level of ongoing child support is owed by Ms. Omonova for the parties’ adult son, who is now 23 years of age and in his final year of university studies; and 2) whether spousal support should be varied or terminated. [ 9 ] In the August 2019 Decision, Germain J held that leave was required prior to filing any additional applications, the parties were restricted from contacting the Court, and the Court would only entertain questions related to entitlement to spousal support and payment of child support.

Any applications related to property and other collateral issues were considered res judicata . [ 10 ] The parties were ordered to contact the Case Management Coordinator in March 2020 to

schedule a date for a further hearing regarding child and spousal support, which was to be heard in April or May of 2020. They were directed to comply with the Alberta Rules of Court , Notices to the Profession and Public on Child Support Applications , NP#2016-01 and

Section 21 Disclosure Initiative Information

Summary , NP#2016-02 and Family Law Practice Note 2 . Any party seeking to

schedule an application was required to file a Disclosure Statement. [ 11 ] The pandemic put an end to the planned case management meeting in the spring of 2020 and the Court issued a general order that all case managed files would be re-directed into the regular court booking system. The parties were thus required to continue their applications by first applying to family docket court, which directed that their pending issues be heard in special chambers. III. Procedural Issues [ 12 ] Ms.

Omonova’s application states: “I ask the court to bring our case to the legal field, as right now I’m enforced to pay spousal support, instead of receiving it.” [ 13 ] As relief, restated and amended in her Variation Affidavit filed March 12, 2021 (“Variation Affidavit”), she sought 38 remedies, some of which include: to declare all prior Court Orders illegal as they are based on the “honey-no-honey” judicial principle;

to permit jury trials for anything in the future to avoid any conflict of interest; to order an international “Human Rights investigation and Financial Audit”; to free her of the obligation to perjure herself to CRA about receipt of spousal support; to order all tax paid for spousal support be repaid to her; to order spousal support in the amount of $2,000 monthly; for the Court to directly order documents from the University of Alberta, Canadian Revenue Agency, and MEP; to keep the file open at the Court of Queen’s Bench for 100 years; to hold Mr.

Omonov in contempt of court and imprison him for 25 years; a declaration that she is the victim of violence as a result of Mr. Omonov’s failure to provide necessities; and payment of a lump sum of $350,000. [ 14 ] As is evident in the August 2019 Decision, many of these requests are not new. Despite being told that these are improper claims, Ms. Omonova persists in making them. In her Concise Letter and Affidavit filed in support of her application, she adds as support the Speech from the Throne and claims a remedy for systemic racism. Ms. Omonova blames the Court for much of her misfortunes.

In the last paragraph of her Variation Affidavit she states: To hide all the crime committed, the Court recommended me to go back to my country. I did not. Then I was pushed at the Court to give up Spousal Support. I did not. Then it was a lot of attacks on me, slanders, public assaults, fabricated debts, etc. to keep me exhausted morally and financially, pushing me to commit suicide. I did not. Multiple schemes made me to pay Spousal Support, instead of receiving it, for many years. They wanted me to lose my mind? I did not. On July 10/20 I called RCMP complaining about the Court.

In a few hours someone came to my property, shot 3 times. I have 4 witnesses. I was provoked to use a gun. I did not. Police investigation is blocked. I am recommended to go to Mental Hospital. I did not. Everyone got a lot of support to be able to survive the Pandemic 2020. To make my life unbearable, I’m ordered to pay $707 instead of receiving $2,000 for 15 months so far. It feels like control shot to my head. While Government is ready to talk about Systemic Racism, the society is actually fain to talk about Systemic Genocide already. I am a disabled person now.

Our case might make a significant vital precedent: it WILL be some kind of Jordan Principle for victims, like me, here. [ 15 ] There are numerous inflammatory statements in Ms. Omonova’s materials, including: analogies to “gang-rape” and genocide; that the courts use the “Colonizer-native” and the honey-no-honey approach in her case; that the Court ignores perjury yet forces her to perjure; that she is a victim of the Court’s fraud perpetrated by dishonest judges who take sadomasochistic satisfaction in their decisions; and that the RCMP refuse to investigate gunshots on her property. [ 16 ] I believe that Ms.

Omonova feels ignored after many years of court applications and as a result, she tends to escalate the description of her claims. I also am cognizant of the fact that English is not her first language and that she may misunderstand some of the offensive terms she refers to in her materials. [ 17 ] Nevertheless, Ms. Omonova has a history of writing complaint letters to the Court and of making insulting and derogatory comments towards court staff (see: Omonova v Omonov , 2019 ABQB 637 ). Despite the Court’s repeated attempts to respond to Ms.

Omonova’s unsubstantiated claims, it is clear she lacks either the insight or the willingness to acknowledge any fairness in the judicial process. As a result, rather than trying to address each of her concerns, I will focus on the legal issues that are reviewable by this Court. [ 18 ] As Ms. Omonova is self-represented and untrained in the law, I allowed her to re-frame and clarify her application before the Court. While I (and others before me) attempted to explain to her that she has never paid spousal support (and the amount she is paying is the positive net balance owed to Mr.

Omonov after accounting for the spousal support she receives and the child support she owes), she remained unconvinced. Because she refused to accept that she had indeed received spousal support, she did not declare it on her tax return. As a result, in his August 2019 Decision, Justice Germain directed her to declare the spousal support in her income tax return. Ms.

Omonova is an intelligent woman and I am confident she understands how the offset payment works; she unfortunately sticks to her position even when she knows it is wrong. [ 19 ] I advised the parties that based on Germain J’s last direction, the only applications that would be permitted were a review of the child and spousal support orders. [ 20 ] Ms. Omonova raised an objection to Mr. Omonov’s application for termination of spousal support filed February 4, 2021, claiming that it was not in accordance with Practice Note 2, particularly as she was not allowed to file a response affidavit.

I have no evidence of her being denied such a right by the Court. In any case, Ms. Omonova filed an affidavit after Mr. Omonov’s application and supporting affidavit was filed, which she entitled an Update Affidavit dated February 17, 2021. There is therefore no prejudice from her inability to file a response affidavit. [ 21 ] I also explained to her that Mr.

Omonov’s application was properly filed and was required since Germain J had already agreed to hear the application in case management, but due to the re-direction of the file into the main-stream process, a new application with updated information had to be formally filed. She continued to object to my decision and demand that Mr. Omonov’s application be struck. [ 22 ] I gave Ms. Omonova the option to adjourn the application so that she could proceed to file a response affidavit and cure any perceived impropriety; she declined and asked that this matter proceed before me. [ 23 ] Mr.

Omonov filed a Disclosure Statement, as required, but Ms. Omonova did not. In my view, given the issues to be determined, both parties lacked sufficient evidence for me to make a proper determination on the applications before me. As such, I invited them both to file one additional affidavit for my consideration with specific direction on what information should be included. I advised them of the right to cross-examine each other if they felt information provided was incorrect or missing. This was mostly in response to Ms.

Omonova’s repeated demand that the Court conduct investigations and order documents from third parties. I advised her that it was her obligation to ensure the evidence she wished to rely on was before the Court prior to the hearing. [ 24 ] Despite my best efforts to re-focus the parties, the additional affidavits provided on March 12, 2021 were largely irrelevant and merely an attempt to relitigate all of the issues previously decided.

[ 25 ] Ms. Omonova added a number of inappropriate remedies to her claim as noted above. Mr. Omonov’s additional affidavit also relitigated his perceived errors in the Original Support Order, including that it did not meet the test of a long-term marriage for which indefinite support would be owed. He also takes issue with German J’s comment in the December 2019 Decision that “[d]uring 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 …”. [ 26 ] Mr.

Omonov needlessly recounted the parties’ employment history from the time of their marriage in order to argue that Ms. Omonova did not financially support him during his PhD studies. It is evident that Mr.

Omonov misunderstands the word support as is used in family law matters and applied by Germain J in his decision. [ 27 ] Despite the superfluous information provided by both sides, I was able to extract the key information from the materials, namely, the parties’ current respective income information, budgets, assets and liabilities, Sherzod’s income information, confirmation of his full-time attendance at university, and evidence of his planned graduation date. [ 28 ] However, both parties’ financial information still remained inadequate.

They are both very familiar with the court process and know what evidence is required. They were advised that it was their responsibility, not the Court’s, to put their best foot forward. I gave them both the unusual opportunity to file an additional affidavit with the relevant financial information. This Court must now move forward with a decision based on the information provided. [ 29 ] Finally, both parties requested an order allowing service by email, which I granted and reiterate as part of this decision. IV. Issues and Brief Conclusions [ 30 ] The issues and brief conclusions are the following: 1.

Is Sherzod still a child of the marriage as defined in the Divorce Act and in need of support? If so, what amount of child support is appropriate given the parties’ means and Sherzod’s ability to contribute? [ 31 ] Sherzod is no longer a child of the marriage under the Divorce Act , RSC , 1985, c 3 as of January 1, 2020. His total income for 2020 was $24,741.

Given the father’s declining income and other financial obligations, the mother’s modest means, as well as Sherzod’s increased ability to finance his own post-secondary education through income and student loans, he is not owed any child support for 2020 or 2021. [ 32 ] Additionally, I conclude that Ms. Omonova shall be reimbursed for any s 3 or s 7 support paid to Mr. Omonov from January 1, 2020 onward. The child wrote his mother a letter advising that he no longer wanted to have a relationship with her and that he did not want any further support. [ 33 ] Any amounts paid by Ms.

Omonova shall be retroactively adjusted by MEP. Any overpayments shall be added to the spousal support arrears noted below under issue 3. 2. Should Mr. Omonov continue to pay spousal support to Ms. Omonova after September, 2021? [ 34 ] Spousal support shall end as of December 31, 2021. Ms. Omonova has achieved self-sufficiency since the divorce in 2011 and any disadvantages arising from the marriage have been alleviated. The parties’ incomes are roughly equal and there is no significant disparity in the standard of living or wealth between them. 3.

Should the suspension of spousal support from April 2020 to present be lifted? [ 35 ] MEP is ordered to lift the suspension and enforce payments of spousal support of $450 per month from April 2020 to December 2021, after which time, spousal support payments shall terminate. [ 36 ] Mr. Omonov shall resume payment of the monthly spousal support payments in the amount of $450 as of April 2021. [ 37 ] The amount of the accumulated spousal support arrears is $5,400 (from April 2020 to March 2021).

It will be added to the child support reimbursement amount calculated by MEP under issue 1 above. [ 38 ] As the total child support and spousal support arrears may result in a substantial payment that will be difficult to pay in one lump sum, Mr. Omonov shall pay the total arrears in installments of $500 per month commencing January 1, 2022 (after his spousal support obligations cease). I note that Ms. Omonova was afforded the courtesy of a payment plan for the retroactive child support payments she owed in the August 2019 Decision. V. The Positions of the Parties [ 39 ] With respect to child support, Mr.

Omonov submits that the years 2019 and ongoing require a recalculation since the parties’ respective incomes have changed as well as the eligible

section 7 expenses. He states that this is a material change in circumstances since the last Court order fixed their respective contributions based on 2018 income. He also asks the Court to declare that Sherzod will no longer be a child of the marriage as of September 1, 2021 as he will complete his program requirements by July of 2021. Finally, he seeks a termination of spousal support as of September 2021 on the basis that the parties’ incomes are roughly equal, Ms. Omonova has achieved self-sufficiency, and that after 10 years of support payments, any disadvantage arising from the marriage has been suitably compensated.

[40] The position of Ms. Omonova is that she continues to experience financial hardship and is owed more support in the amountof $2,000 per month. She believes that a lifetime of support is owed and that further, Mr. Omonov has committed fraud and deceived theCourt into believing he lives a modest lifestyle. Much of her suspicion arises from her belief that the matrimonial property wasimproperly divided in the divorce and that Mr. Omonov has since earned substantial profits from a property he owns in Uzbekistan. VI.

Legal Analysis [41] As the child support order applicable to the years 2019 and following was reviewable, no proof of a change in circumstancesis required. a. Is Sherzod Omonov still a child of the marriage as definedin the Divorce Act and in need of support?

If so, what amount ofsupport is appropriate given the parties’ means and Sherzod’sability to contribute? [42] Sherzod is now 23 years of age and in his final year of a 5-year program at the University of Alberta in the Faculty ofAgricultural, Life and Environmental Sciences, working towards a Bachelor of Science in Nutrition and Food Science with aspecialization in dietetics. In the fall 2020 and winter 2021 term, he has been completing a professional practicum placement. He isexpected to graduate in July 2021.

He moved out of his father’s home in 2018 and has been living with a roommate with whom heshares living expenses. He has maintained part-time employment and it appears in 2020, he received a significant amount of funds fromthe CERB (Canada Emergency Response Benefit). It also appears from his records that he has a student loan, although the details of theloan have not been provided. i.

Legal test [43] The federal Divorce Act, which applies to all cases in Canada where the parents were legally married and divorcing or havedivorced, provides: 2. (1) “child of the marriage” means a child of two spouses or former spouses who, at the material time ... (

b) is the age of majority orover and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain thenecessities of life; … [44] Ms. Omonova refers to provincial legislation (Family Law Act) to argue that Sherzod is no longer eligible for child support. This legislation does not apply to children of divorced parents. [45] The amount of support that the child will be entitled to is determined under the federal Child Support Guidelines, whichprovide: 3.

(2) Child the age of majority or over – Unless otherwise provided under these Guidelines, where a child to whom a child support orderrelates is the age of majority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines asif the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considersappropriate, having regard to the condition, means, needs, and other circumstances of the child and the financial ability of each spouse tocontribute to the support of the child. 7.

(1) Special or Extraordinary Expenses – In a child support order the court may, on either spouse’s request, provide for an amount tocover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense inrelation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the childand to the family’s spending pattern prior to the separation... (

e) expenses for post-secondary education [46] Although post-secondary education is not specifically mentioned in the Divorce Act as a reason for which an adult remains a“child of the marriage,” it is universally accepted that it may be the basis for a claim for child support.[1] [47] As stated by Nicholas Bala: “As there is no statutory presumption of entitlement to support for a child attending post-secondary education, the parent (or adult child) seeking support must provide some information about the nature and costs of the child’sschooling.”[2] In Felbel v Felbel, 2007 MBQB 150, the father brought an application to terminate child support for his three adultchildren.

The Court granted the application and terminated support. Little J stated at para 5: When it comes to support for adult children, the court must first consider whether they are ‘children of the marriage’ . . . Are they really‘unable to withdraw’ from the charge of a parent? This involves an inquiry not simply limited to whether the child is in school, but alsohow much they are in school. On occasion it can also involve consideration of the child’s income and assets.

Some ‘children’ earnsignificant income or have significant assets in their own right. [48] Courts across Canada have commonly considered the Farden list of factors crafted in the case Farden v Farden (1993), 48RFL (3d) 60, (BC SC) [Farden] in determining the eligibility of adult children to child support. [49] More recently, some courts have cited para 157 of the 2012 Ontario Superior Court of Justice decision of Chappel J in

Menegaldo v Menegaldo , 2012 ONSC 2915 [ Menegaldo ] as setting out a more comprehensive list of factors relevant to the eligibility for child support of adult children attending post-secondary education (incorporating the Farden factors). [3] [ 50 ] I will now discuss the expanded Farden factors relevant to the particular facts of this case. 1.

Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies [ 51 ] The evidence provided establishes Sherzod has been enrolled in full-time university studies at the University of Alberta for the relevant period of time. 2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received [ 52 ] In most cases involving parents with limited resources, the Court will also require the child to accrue some level of student debt.

In Naveed v Nasir , 2016 ONSC 7878 [ Naveed ], Kiteley J held at para 46 that as: …the family members collectively have insufficient means to cover the post-secondary education expenses of the children and consequently both [children attending university] are required to apply for student loans and grants, as well as whatever scholarships or bursaries might be available. [ 53 ] Further, the two adult children were expected to have employment income and to contribute 40% of the costs after student loans, grants, and bursaries. [ 54 ] “While parents have a responsibility to provide support to adult children undertaking [post-secondary] studies, this must be balanced against the responsibility of young adults to contribute to their own education in a way that reflects self-reliance and diligence”.

Generally, “[i]f the parent has adequate resources to provide support, the child will not be required to assume debt in the early stages of post-secondary education”. [4] H owever, “[i]t is not unreasonable under s. 7 to expect a university student to contribute a gradually increased portion of their university costs as they age and advance in their studies where their parents have limited income levels”: Cooke v Plante , 2007 CarswellOnt 7385, [2007] OJ No 4459 (Ont SCJ) at para 17 . [ 55 ] In Fernquist v Garland , 2005 SKQB 519 , Klebuc J held at para 32 that the following five questions ought to be considered:

(1) Would the payment of child support leave the parent with a reasonable standard of living having regard to the parent's age, health, and future needs?

(2) What are the likely future financial positions of the parent and adult child upon the latter completing his or her studies?

(3) Will the parent have to borrow funds in order to provide support for the adult child, and if so, what are the consequences to the parent in comparison to those of the adult child if he or she obtained a student loan?

(4) What are the relative ages and work life expectancy of the parent and adult child?

(5) The time remaining until the adult child can be reasonably expected to gain material earnings from his education. [ 56 ] Klebuc J explained at para 33 that the Court should consider these questions and then: [I]f the adult child lacks the ability to provide for her or his necessities and the payment of child support would prejudice the parent more over time than a student loan would prejudice the adult child, the adult child is required to secure available student loans and use such other resources at his or her disposal to cover the cost of a secondary education before looking to a parent for support. [ 57 ] The Court must conduct an analysis of the parents’ and child’s “means, needs and other circumstances.” [ 58 ] In this case, based on the parents’ respective incomes, budgets, and net worth, Sherzod would be required to contribute to his education through any scholarships, bursaries, or loans available to him.

There is a reference in his University of Alberta records to transfers related to a Canada Student Loan, although no specific details were provided. Mr. Omonov also advised that Sherzod received special recognition or an award from the University of Alberta, but it was not clear whether any funds were paid to Sherzod as a result. 3. The ability of the child to contribute to their own support through part-time employment [ 59 ] Sherzod has been able to contribute to his financial support through part-time employment throughout his university education.

In particular, in 2020, he earned over $24,000 in income, including CERB, which will be taxed at a low rate. It is unknown what income he will earn in 2021. He is expected to graduate in July. It is possible that he will be employed full-time for a large part of this year. 4.

Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do [ 60 ] In the 2003 Alberta Court of Appeal decision Olson v Olson , 2003 ABCA 56 [ Olson ] ¸ Hunt JA held that: When a child that is capable of further benefit from an education or other special training which will fit her for an occupation in later years, such an education or course of training should be looked upon as in the nature of a necessary of life. [ 61 ] As noted by Bala, “[t]his suggests that the courts will require support for education or training programs that have a reasonable chance of contributing to a child’s future self-sufficiency.” [5] [ 62 ] In this case, Sherzod’s program is nearly complete and while he does not have employment secured, he is completing a professional internship and expects to work in the field of his studies. 5.

In reviewing the child's education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies

and the associated cost of the course of study [ 63 ] The transcripts in evidence indicate that Sherzod’s chosen program takes 5 years to complete. Sherzod is expecting to graduate this year at the age of 23. [ 64 ] The Order granted July 20, 2016, at para 2, stated that child support is payable for Sherzod so long as he attends university full-time for his first degree, subject to further order of the Court.

Sherzod took time off for a term at a school in Germany, the cost of which the Court declined to grant as a s 7 expense as it did not give rise to university credit: Omonova v Omonov , 2017 ABQB 309 at para 22 . [ 65 ] Overall, the amount of time he has been taking to complete the program and his success in it is favourable. The costs of the program in relation to the likelihood that he will work in the field are also positive indicators of the value of his education to his future. 6.

The child's academic performance, and whether the child is demonstrating success in the chosen course of studies [ 66 ] Sherzod’s transcript demonstrates success in the program. 7. The age, qualifications and experience of the child [ 67 ] When his studies are complete, Sherzod will have taken approximately 5.5 years to complete the program in question. He will be 23 years of age. He appears qualified to work in the field as he is completing a year-long placement. 8.

The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility [ 68 ] Based on his transcripts, it appears that Sherzod is committed to the program and that he has approached his studies with diligence. 9. Whether the child is performing well in the chosen course of studies [ 69 ] Sherzod is succeeding in the program and has good grades. 10. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation.

In considering this factor, the Court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally [ 70 ] There is a dispute on the evidence as to whether the parties intended to support their children in their post-secondary pursuits. Ms. Omonova states that there is no such expectation in their culture, and that in fact, Mr. Omonov received no support from his parents for his education. [ 71 ] Ms. Omonova was required to pay support for the parties’ daughter Shannon, which was eventually terminated. Even after it ceased, Ms.

Omonova continued to raise issues regarding the support she paid for Shannon, including as referred to in para 7 of the August 2019 Decision, where Germain J references 28 claims for relief made by Ms. Omonova, one of which is a request for a refund of the child support for Shannon. [ 72 ] At some point, Ms. Omonova cashed in a RESP after Shannon moved out.

There are ongoing disputes about the amount taken out of the account, the intent of the RESP, the impact on the children, and the tax implications. [ 73 ] I infer from the fact that there was a RESP account set up that the parents intended to support their children to some degree in their post-secondary education. 11. The means, needs and other circumstances of the parents and the child [ 74 ] The Court should “consider both the means of the parents and their spending habits prior to separation” [6] .

In the 2014 British Columbia case of BLS v EJS , 2014 BCSC 1549 [ BLS ], the Court considered the means of the parents where an application was brought by the payor father to terminate his child support obligations for his middle daughter, who was attending university.

The Court held that in circumstances where the parties have modest income and other support obligations, expectations of a child become greater, particularly when it comes to the child’s career plans, financial contributions, course load, and academic performance. [ 75 ] I also note that Sherzod moved out of his father’s home, increasing his overall needs and expenses.

He had the option of remaining with his father, which would have been the most economical option. [ 76 ] Further, the Court in BLS held that as provided by s 3(2) of the Guidelines , the financial ability of each spouse to contribute to the support of the child is the prominent practical consideration. The higher the parental income and the marital standard of living, the greater the call on the parent’s resources, assuming the child is entitled to child support.

The lower the parental income and the marital standard of living, the lesser the call on them. “Entitlement to parental support arises when all the circumstances, considered in their totality, justify it: BLS at para 33 . Guidelines income [7] M r. Omonov M s. Omonova S herzod

2 017 Line 150 of $82,844 (less union dues of $563 and spousal support paid of $5,150) = $77,131 $59,855 for the purpose of s 3 support and $65,005 for the purpose of calculating s 7 expense contribution (line 150 income including spousal support). $1 0,337 2 018 Line 150 of $85,330 (less union dues of $692 and spousal support paid by him of $5,400) = $79,238 $60,238 for the purpose of s 3 support (line 150 income of $65,638 less spousal support received of $5,400) and $65,638 for the purpose of s 7 expense contribution (line 150 income including spousal support received). $7 ,171 2 019 Line 150 of $77,965 (less union dues of $591 and spousal support paid by him of $5,400) = $71,974 $61,287 (Line 150 income of $66,687 less spousal support received of $5,400) and $66,638 for the purpose of s 7 expense contribution (includes spousal support received) $6,507 2 020 Line 150 of $67,767 (less union dues of $420 and spousal support paid by him of $5,400) = $61,947 $59,589 (Line 150 income of $64,989 less spousal support received of $5,400) and $64,989 for the purpose of s 7 expense contribution (includes spousal support received) $24,741 2021 One year contract ends September 2021.

Income expected to be approximately $64,805 less $5,400 spousal support = $59,405 Expected to be approximately $60,000 based on reduced salary for Short Term Disability [STD] but including an estimate of Manulife benefits received (actual amount not provided) Unknown. Expected graduation July 2021 12. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress.

If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education [ 77 ] As noted by Bala, “[t]his broad language has been interpreted to allow courts to take account of whether an adult child has effectively ended the social and emotional relationship with the parent from whom child support is being sought.

The courts, however, will consider the reasons for a child’s estrangement from the payor parent…” [8] , and are reluctant to terminate support based on the negative attitude of an adult child towards the payor parent or based upon a mere deterioration of the parental-child relationship.

See: Lawlor v Lawlor , 2012 ABQB 723 at para 80 ; McLean v McLean , 2014 ABQB 93 at para 13 [ McLean ]; Park v Park , 2016 ABQB 603 at para 49 . [ 78 ] As this issue does not come up frequently, and since it is a topic that often delves into the complicated parental-child relationship, it is deserving of a sensitive, contextual, and balanced approach.

A review of the principles and considerations that have emerged from cases in Canada is appropriate. [ 79 ] “In order for this Farden factor to influence the Court’s decision, the child’s rejection of a parent has to be considered an independent decision, and not the result of the conduct or attitude of the payor parent”. [9] In Shaw v Arndt , 2016 BCCA 78 [ Shaw ], the Court rejected an applicant father’s assertion that his step-son, who was 20-years-old and still attending high school, had voluntarily withdrawn from the parental relationship. Newbury JA held that “it appears Mr.

Arndt purported to ‘disown’ his stepson in the course of a trivial dispute.”: Shaw at para 3 0 . [ 80 ] Newbury JA further commented at para 31:

The unsatisfactory relationship is not an excuse for Mr. Arndt’s failure to pay child support; nor is it a reason why Colby should not beregarded as a child of the marriage. Many parents or step-parents have troubled relationships with their children, but by virtue of theiryouth, children still have to be supported, in whole or in part, in obtaining training or degrees that will allow them to become self-sufficient.

The final ‘Farden factor’ may justify the cessation of support in rare cases, but this case does not begin to approach theegregious circumstances in which a cut-off of support would be justified. [81] In Lampron v Lampron (2006), 29 RFL (6th) 307, (Ont SCJ), the two children aged 18 and 20 yearsrefused to have anything to do with their father, and wrote him a number of letters calling him a “professional thief,” making it clear thatthey did not want a relationship with him, and refusing him information about their academic progress.

In granting the father’sapplication to terminate child support, Manton J held that adult children are obliged to keep a payor parent informed of their progress inschool, and engage in “some sensible discussion” with the parent about their plans. He concluded at para 5: If the father is not to occupy part of their lives and his children who have attained the age of majority will not speak to him, they do notdeserve to be supported by him.

They said themselves that they can support themselves and that is what they will have to do from nowon. [82] In Magotiaux v Magotiaux, 2016 SKQB 406, an 18-year-old girl rejected a relationship with her father for at least six years,despite her father’s attempts to connect with her.

Justice Tholl held that termination of child support will occur only where therelationship is terminated unilaterally without justification; specifically, it was stated at para 24 that “[a] parent is expected to reach outto the child and make considerable and continuous efforts to rekindle the relationship in the face of rejection or reluctance from the child.

An adult child is not required to engage in a high quality or close relationship with her parent, but modest or minimal effort is expected.” [83] In HMH v TRH, 2017 BCSC 1899, the mother sought a declaration that both children, a 21-year-old daughter and a 19-year-old son, remained children of the marriage despite their refusal for many years to see or communicate with their father. Justice Milmanconcluded that there was no evidence to justify the children’s actions; and thus, the decision to terminate the relationship was entirelytheirs.

Applying the Farden test and weighing all of the factors, the judge concluded that neither child should be considered a child ofthe marriage “at this time,” and therefore terminated child support (paras 41 - 43). [84] All of the above considerations are not necessarily relevant to every case, and they do not all need to be considered in everycase in determining whether a child remains a “child of the marriage.” Rather, the Court should use any considerations that are relevantto the specific case at hand: Menegaldo at para 158. [85] The evidence from both parents indicates that the relationship between Ms.

Omonova and Sherzod has been extremelystrained for the last 10 years. However, there is no evidence that this is the fault of either Ms. Omonova or Sherzod. In oral argument,Ms. Omonova likened the Judgment of Solomon - a story from the Hebrew Bible in which King Solomon of Israel ruled between twowomen both claiming to be the mother of a child - to her own story, in order to explain why she felt it was best to not interfere in herson’s life.

She explained that she could not bear the conflict and stress it was causing, and that as a result of parental alienation, she wasprevented from having a meaningful relationship with him. [86] During the June 14, 2019 court appearance, the question of whether Sherzod was married came up. This apparently angeredSherzod and caused him to write a letter to his mother the same day that stated: I’ve had some time to think about what you said in court and I’m pretty disappointed that you felt the need to lie about me in courtdocuments (screenshot below) [omitted].

I’m even more disappointed that I wasn’t able to tell the judge that you lied in court. Specifically, about dad not letting me see you or my friends. And that he ‘bribed’ me into living with him by buying me a phone. Andthat Serena and I are married so I don’t need to receive child support. I honestly don’t even want your money. Neither does dad. What I want is for you to seriously consider ending these court meetingspermanently because it’s costing everyone too much time, money, and health. What I want is two parents that aren’t destroying eachother’s lives over money.

I’m gonna need some time away from you because I don’t want to be allied with somebody who is actively harming the family andthemselves. I want to preserve our relationship but doing so will go against my own morals. You won’t be seeing me until you realizethat the couple hundred dollars you MIGHT receive per month aren’t worth the time, money, ‘abuse’, and therapy. I really want the bestfor everyone in this family, including you, but today I realized that you’re the only person preventing everyone from moving on withtheir lives. All of these are my own thoughts and my own words.

No input was provided by dad or Shannon. I am not brainwashed. I hope you can finally move on and leave this divorce in the past. When you do, I’ll be happy to have you in my life again. Good luck with everything. [87] Ms. Omonova argues that this is a unilateral termination of the relationship without justification since Sherzod would notpermit any discussion or allow her to explain what happened in court. She was very emotional when she recounted feeling betrayed. Shespoke of the love she gave her children over the years and the sacrifices she made mostly as a single parent only to be rejected by them.

She further explains the emotional pain of being alone causes her and that she has not so much as received a birthday or Mother’s Daycard. It is her belief that the lack of a relationship with both children is entirely due to Mr. Omonov’s deliberate parental alienation bycutting her out of their lives, failing to share any information with her, and gifting them with items she could not afford. [88] The issue of parental alienation is not a consideration under the Farden factors. Ms. Omonova has raised this issue previouslybefore Germain J in relation to other parenting issues. There is no basis to assess Mr.

Omonov’s parental alienation of Sherzod withinthe analysis of whether Sherzod unilaterally terminated the relationship with Ms. Omonova. The only aspect that is relevant is as itrelates to the history of the relationship; in particular, whether, because of the perceived parental alienation, it was reasonable for Ms.

Omonova to have limited her contact with the child throughout the years. [89] Sherzod was a mature adult at the time he wrote the letter. The intent is clear – he does not want money from his mother. Aschild support is the right of the child, it is difficult to conceive the reason why a court might ignore his explicit wish to not receive anyfinancial support from his mother. [90] On the other hand, I must also consider the fact that Sherzod is the product of a high-conflict divorce, and subject to thecomplexities that arise therefrom; he is not entirely to blame for his outburst.

It is evident that he is reacting out of frustration over hisperception of his mother’s poor behaviour in these court proceedings. [91] From my review of this file, I note that Ms. Omonova has been a difficult litigant whose behaviour has led to restrictionsbeing put in place that are atypical.

While I cannot extrapolate that this poor conduct extends to how she dealt with her son, I also notethat parents are expected to make efforts to preserve a relationship even in the face of rejection or reluctance from the child. [92] What is clear is that Sherzod wishes these court proceedings would come to an end and that his parents will stop fighting overmoney. He expressed in his letter that he needs some time away from his mother and that he will be happy to have his mother back in hislife again once she moves on and leaves the divorce in the past.

He has left open the the possibility of reconciliation at some point in thefuture: Fraser v Jones (1995), 17 RFL (4th) 218, (Sask QB), cited in McLean v McLean, 2013 ABQB 700 at paras60-61. [93] I am not privy to the entire history of the relationship, and without more evidence, it is not my place to cast blame solely onone person for the deterioration of the relationship between Sherzod and Ms. Omonova. It appears from the tone of the letter that whileMs.

Omonova may not have had a close relationship with Sherzod prior to the writing of this letter, there was at least some ongoingcontact, albeit minimal, and the possibility for reconciliation. [94] I conclude that the deterioration of their relationship, as evidenced in this letter, is insufficient to find that Sherzod hasunilaterally terminated his relationship with his mother such that he is disentitled from receiving child support.

This situation is not asegregious as the other cases in which child support was terminated on that basis alone. [95] That said, while acknowledging that I am factoring in the letter without evidence from Sherzod, I am prepared to take intoconsideration his statement that he does not want his mother’s money in the overall analysis of whether he remains a “child of themarriage” from a needs-based perspective. Sherzod was clear in his letter that he does not want support and will not communicate withhis mother unless she moves on from engaging in any divorce proceedings.

He is old enough to understand that consequences flow fromchoices he makes in his life, including his choice to at least temporarily cease his relationship with his mother. See: McLean at para 13. ii.

Conclusion on ChildSupport [96] As recently articulated by Malik J in Gotte v Gotte, 2021 ABQB 224 at para 11, in applying the Farden factors, I am mindfulof the following considerations: • The onus of proof that an adult child is a “child of the marriage” rests on the party seeking support: Olson at paras 16-18; • A determination as to whether a child attending a post-secondary institution should be considered a “child of the marriage”requires an examination of all of the circumstances with no one factor being determinative: Taggart v Taggart, 2019 ABCA 78 at para 6;and • It is not reasonable to expect a parent to financially support their adult child who has unilaterally terminated their relationshipwithout any apparent reason: Farden at 10-11.

However, the quality of the relationship between the adult child and the payor parent,including the child’s withdrawal from the relationship, is only one factor in deciding whether the child is still “a child of the marriage”and entitled to child support; the rejection of the parental-child relationship is weighed along with other factors to determine the child’seligibility to support: Wahl v Wahl, 2000 ABQB 10 at para 67 [Wahl]. [97] Considering the above Farden factors overall, I find that Sherzod ceased to be a “child of the marriage” as of January 2020.

This is primarily because his father’s income dropped, his mother’s income is modest, and his own income increased substantially in2020, changing the needs and means based analysis for that year and ongoing. In addition, I considered as a factor in favour of mydecision the fact that Sherzod declared that he no longer wanted further financial support from his mother. [98] Moreover, I must note that Mr. Omonov is advancing an application for increased child support.

Yet, he did not providesufficient information for me to be able to fully assess Sherzod’s needs, including his budget and the availability of loans, bursaries, andscholarships. He has therefore not established Sherzod’s inability to be self-sufficient in the years 2020 and 2021. [99] An analysis of the father’s budget also indicates that he has little to no excess funds, particularly after he lost his permanentemployment with the University of Alberta. He is currently on a one-year contract that is expected to end in September, 2021.

Themother’s budget is also lean, and as I noted above, I have considered as an additional factor the fact that Sherzod has expressed that hedoes not want his mother’s money. [100] In consideration of the global assessment of the relevant Farden factors, I have therefore chosen January 2020 as the date todeclare Sherzod no longer a “child of the marriage.” This is the date after which all the factors assessed globally point to a terminationof Sherzod’s need for support.

[ 101 ] Sherzod has good employment prospects, received a substantial amount of money in 2020, and has access to student loans. He is expected to graduate in July 2021 and will likely be able to work full-time for the remainder of the year. In light of this, no further child support is owed. [ 102 ] Child support will be retroactively adjusted as follows: (

a) Ms. Omonova will no longer be obligated to provide any s 3 or s 7 support as of January 1, 2020. (

b) Any amounts paid shall be credited to her MEP account and reimbursed by Mr. Omonov commencing January 2022, since he received the support on behalf of Sherzod. [ 103 ] I recognize there was a modest increase in s 7 expenses for 2019; however, there was insufficient evidence to conclude that additional support was required by Sherzod. As all obligations will be terminated effective January 1, 2020, I will not increase the previously-set monthly contribution. b. Should Mr. Omonov continue to pay spousal support to Ms. Omonova after September, 2021? i.

Background [ 104 ] The parties were married on October 6, 1990 in Uzbekistan and were divorced on March 3, 2011. During the course of their marriage two children were born (Shannon on July 19, 1991 and Sherzod on October 11, 1997). During the marriage, the parties both worked in various jobs. Mr. Omonov was away from the family for approximately 3 years pursuing a PhD in Chemistry and an MSc in Physics, which he ultimately obtained. During this time, he was providing financial support to the family and visited when he could. Ms.

Omonova worked for approximately 10 years of their marriage, and was the homemaker and caregiver for the children. They eventually moved to Belgium and then to Canada as a family. Ms. Omonova has a Masters level degree in education. [ 105 ] After the date of separation, which Ms. Omonova claimed in her Statement of Claim for Divorce was January 18, 2009, the children of the marriage lived with Ms. Omonova. However, on August 15, 2009, and prior to the divorce, the eldest child Shannon moved out. When Sherzod was 14 years old, he moved in with his father. In October 2014, Germain J ordered Mr.

Omonov to be the sole legal guardian of Sherzod. ii. Issues [ 106 ] For the purposes of this application, in my view, I am required to consider two main issues: 1.Has Mr. Omonov demonstrated a material change in his condition, means, needs or other circumstances by reason of the parity in income with Ms. Omonova since the Last Variation Order? 2.If so, what implication does the material change have on the amount and duration of spousal support to be paid, if any? 1. Has Mr.

Omonov demonstrated a material change in circumstances? [ 107 ] The Original Support Order was made by Germain J under the Divorce Act , following a trial. It has been varied a couple of times since then. The last variation of the spousal support provisions contained in the Original Support Order was made by Germain J on May 3, 2017, being the Last Variation Order. The monthly spousal support payments were increased to $450 effective June 1, 2017 and ongoing until further order of the Court. [ 108 ] Mr.

Omonov now seeks to challenge the Original Support Order collaterally by suggesting that indefinite support ought never have been ordered; that issue was never appealed and is not properly before me. [ 109 ] Ms. Omonova also seeks to re-open all prior court orders and asks this Court to declare them illegal. She also asks this Court to order a financial audit of a property owned by Mr. Omonov in Uzbekistan and demands an accounting of profits. It is not now open to either party to challenge the Original Support Order by arguing what is essentially a collateral attack on the propriety of the division of property.

There is no credible evidence that Mr. Omonov is earning profits from ownership of foreign property, or that it is even still owned by him, and it is not the role of this Court to try to prove otherwise. [ 110 ] Any attempt to relitigate the Original Support Order is precluded by the doctrine of res judicata , which includes cause of action estoppel and issue estoppel: 864503 Alberta Inc v Genco Place Properties Ltd , 2019 ABCA 80 at paras 24-27 . [ 111 ] Mr. Omonov argues that there ought to now be a termination of spousal support because Ms.

Omonova earns substantially the same as he does and that she has achieved self-sufficiency. It is necessary to examine what is legally contemplated when a Court is asked to consider a variation application under s 17 of the Divorce Act . The important legislative provisions are as follows: 17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(

a) A support order or any provision thereof on application by either or both former spouses…

(4.1) Before the court makes a variation order in respect of a spousal order, the court shall satisfy itself that a change in the condition,means, needs or other circumstances of either former spouse has occurred since the making of the spousal support or the last variationmade in respect of that order, and, in making the variation order, the court shall take that change into consideration.

(7) A variation order varying a spousal support order should (

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [112] In JLB v WMB, 2019 ABQB 323 [JLB][10], Labrenz J dealt with a similar situation. I adopt his analysis at paras 21-26 for thedetermination of whether there is a material change in circumstances: “In LMP v LS, 2011 SCC 64 at para 30 [LMP], the majority of theSupreme Court of Canada instructed judges tasked with a variation application to approach the matter in the manner first established inWillick v Willick, [1994] 3 SCR 670, [Willick] and LG v GB, [1995] 3 SCR 370, (SCC).

This approachdirects me to consider the [Last Variation Order] as having been correctly made.” As well, I am to ask first whether the party seeking afurther variation has demonstrated that since the making of the Last Variation Order, there has been a material change in circumstancessuch that if the change had been known at the time of making the Last Variation Order, that Order likely would have contained differentterms: LMP at paras 32-33.

If the applicant has established a material change, the Court must then determine what variation is necessaryviewed through the lens of the objectives of spousal support listed in s 17(7) of the Divorce Act. [113] The Supreme Court of Canada further indicated in LMP at para 35, that a material change must generally have some degree ofcontinuity and must not be a temporary set of circumstances: JLB at para 22. Further, when determining whether there has been amaterial change in circumstances, the Court must examine the circumstances of the parties at the time of the Last Variation Order.

InWillick, at para 20, Sopinka J, speaking for the majority stated as follows: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. [114] As stated at para 23 in JBL: “When the threshold for a variation has been met, a court must determine what variation must bemade to the order because of the change in circumstances. The Court should limit itself to only the variation justified by that change.

AsJustice L’Heureux-Dubé, who concurred in Willick stated at para 70, ‘a variation under the Act is neither an appeal of the original ordernor a de novo hearing.’ [115] I am limited to making an appropriate variation to the Last Variation Order occasioned by the material change as

section 17 ofthe Divorce Act does not permit me to weigh the factors anew. [116] In

summary, Mr. Omonov has the burden of establishing that since the date of the Last Variation Order there has been a“material” change in circumstances, in the sense that had those circumstances been known at the time of the last variation, the LastVariation Order would have resulted in a different direction as to spousal support. The material circumstances must not be temporary. [117] Finally, as stated at para 26 in JBL: Variation involves the Court considering the application of both ss 17(4) and 17(7) of the Divorce Act.

That is, once a material changein circumstances has been established, the variation order should reflect the objectives set out in s. 17(7) by taking account of thematerial change in circumstances. It is important to note, however, that there is nothing in the Divorce Act that suggests any one of thefactors is more important than the others. Analysis [118] In the Original Support Order dated December 21, 2011, amended on January 19, 2012, spousal support was set at $275 permonth on an indefinite basis. Mr.

Omonov submits the order for indefinite support was made in error as it was an 18 year marriage (asopposed to a 20 year marriage) and would not qualify as long-term or suitable for indefinite support. It is of no consequence. As statedpreviously, the Original Support Order was not appealed and thus the Order that spousal support be indefinite stands and is not open tobe revisited. [119] Ms. Omonova was ordered to be the sole owner of the matrimonial home valued at $347,500.00 and was responsible for theoutstanding mortgage and a debt to Allan King in the amount of $5,000.

She retained the household contents, vehicle and her employerpension. Mr. Omonov retained his employer pension and land interest in his name in Uzbekistan. A small equalization payment waspaid to Ms. Ononova. [120] As there are no written reasons for judgment, I am unable to discern the basis for the spousal support. However, based on thecomment in the December 2019 Decision that “[d]uring their marriage it is clear that Mr. Omonov was absent from their home for manyyears while he pursued his PhD. He received that degree in large part because of the support of Ms.

Omonova…,” I conclude that atleast a portion of it was compensatory.

[ 121 ] The Original Support Order was not time limited, nor did it provide for a review. It further stipulated that by May 15 th of each year, the parties would exchange a true copy of their income tax returns, together with a copy of the Notice of Assessment/Reassessment each receives, which was to be provided within 30 days of receipt. [ 122 ] It can be inferred from the amount payable that the parties lived a modest lifestyle during the marriage and at separation. [ 123 ] During case management conferences the amount of spousal support payable was increased to $400 and then $450 per month. [ 124 ] Both Mr.

Omonov’s and Ms. Omonova’s income has increased roughly in the same proportion. Germain J held in para 48 of the August 2019 Decision that spousal support was set out based on the long-term marriage and “while it has now continued for nearly 10 years there is still a compensatory element to the spousal support.” In the result, he dismissed Mr. Omonov’s application to end spousal support at that time. However, he stated that it would be reviewable at the next case management meeting, which was cancelled because of COVID-19.

Given that leave was granted to review spousal support, it is not strictly necessary that I find that a material change in circumstances exists. Nevertheless, I find it prudent to do so. [ 125 ] I conclude that Mr. Omonov, who is now 52 years of age, lost his permanent job at the University of Alberta, and is now working under a 1-year contract, has demonstrated a material change in circumstances that would justify a variation. I say this because the parties’ respective incomes are now relatively similar. In addition, as I have terminated Ms.

Omonova’s obligation to pay child support effective January 1, 2020, the financial picture has significantly changed. Moreover, I must consider the disadvantages occasioned by the marriage and whether they have been alleviated as well as whether Ms. Omonova has achieved self-sufficiency. 2. What implication does the material change have on the amount and duration of spousal support to be paid, if any? Mr. Omonov’s net worth [ 126 ] Mr. Omonov owns a condo valued at $262,000, with an outstanding mortgage of $192,202.

His vehicle is valued at $5,000 and he has a chequing account with a balance of approximately $3,384 and a savings account with approximately $10,000. He has an RRSP valued at $4,057 and a loan of $21,668. [ 127 ] Mr. Omonov has accumulated a small pension (UAPP) valued at $82,417 and I am satisfied of the accuracy of this figure. The majority of this amount was accrued after the divorce. Ms. Omonova’s net worth [ 128 ] Based on the records provided, it appears Ms. Omonova has little in the way of savings or investments. She appears to have a loan in the amount of $5,446 and a mortgage with a balance of $280,212.

As she has not completed a statement of Assets and Liabilities, I am unable to determine what the current market value of the matrimonial home is or the value of her pension and other assets. I note that the home was valued at $347,500 in 2011. [ 129 ] Ms. Omonova provided a list of debts she believes she is owed totaling $350,000.

I have explained to her that these are all improper claims as they are an attempt to re-open the division of matrimonial property (which was never appealed and is strictly prohibited by Germain J’s August 2019 Decision) or an attempt to establish debts and penalties owed to her for what she perceives as inappropriate spousal and child support orders. [ 130 ] I also advised both parties that I will not revisit Germain J’s prior orders, other than the Last Variation Order.

As Justice Germain held in his August 2019 Decision that spousal support was to remain at $450 per month, any retroactive support adjustments will be considered from September 2019 forward based on actual income information now available. [ 131 ] I conclude that both parties have a modest net worth and neither is financially better off than the other. Mr. Omonov’s Budget [ 132 ] Mr. Omonov’s budget is lean, showing a small monthly deficit. Ms. Omonova argues that his evidence is based on fraud, lies, and long-standing deception of the courts.

However, she has never cross-examined him on his affidavits to seek further information to substantiate her claims, as was always within her right to do. Instead, she bases her argument on suspicion and demands that the Court order production of documents directly from third parties and conduct a financial audit. I have explained to her that the Court’s role is that of a neutral arbitrator and not as an advocate for either party. The parties are responsible for marshaling and putting the best evidence forward, before the court hearing proceeds. Further, it is important to note that Mr.

Omonov complied with the requirement to provide a Disclosure Statement prior to the hearing, whereas Ms. Omonova did not. Ms. Omonova’s Budget [ 133 ] I provided Ms. Omonova the opportunity to provide a further affidavit after the hearing so that my decision could be based on a proper comparison of household means and needs. I also asked Mr. Omonov to provide some of the additional documents requested by Ms. Omonova. While the information provided by both lacks completeness, as stated earlier, it is sufficient to enable me to make my determination. [ 134 ] Ms.

Omonova has provided a budget, which includes some of her actual expenses, but also includes a number of aspirational financial goals such as money for a pension, a new car, and hypothetical house repairs.

[135] She also advises that she is currently on short-term disability, but has not provided the amount of income support she isreceiving. The medical documents provided indicates that she was off work for 8 weeks for anxiety-stress related reasons and that she isexpected to return to work in March 2021. She indicated to the Court that it is her intention to do so as well. The treatment noted in thedocument is rest (no medications), although Ms.

Omonova in her oral argument insisted that there was a requirement to take anti-depressants to maintain insurance. [136] The relevance of her argument in relation to the issues was not clear except that I understood that she did not wish to takemedication so that she could remain clear-headed for the court hearing. [137] Ms. Omonova often refers to being disabled and having cancer. The documents provided show that she completed treatment in2013 for thyroid cancer, and that it is recommended she undergo regular checkups and tests. I understand that the cost of hormonetherapy and tests is covered by insurance; Ms.

Omonova has not provided any evidence of the need for her to pay for it out of pocket. Other than the short-term disability status related to stress, and which indicates that she has a limited ability to lift heavy items, I have notbeen provided with any other evidence for why she might consider herself permanently disabled. [138] Ms. Omonova provided a letter indicating that from March 2020 to March 2021, she deferred 7 mortgage payments. It is notclear what the reason for the deferral was. It is also not clear what short-term disability (STD) payments she has received fromManulife. [139] Ms.

Omonova’s budget is modest and she lives within her means. On a monthly net income of approximately $3,400 (notincluding spousal support), she has mortgage payments of $1,196. She allegedly has other expenses approximating $2,000. I reject thehigh end of her estimated monthly expenses of $2,333 as they do not appear justified in light of the usual expenses for a single-personhome.

In addition, she lists a number of speculative expenses (vehicle repair, CRA scheme for hidden spousal support, householdmaintenance and repairs, roofing, a lawnmower, washer and dryer, new car) with ranges up to a high of $3,000 per month; however, noneof them are actuals or evidenced by receipts. [140] Ms. Omonova also lists expected future costs such as travel for her mom’s funeral, a pension plan, an independent investigationinto the 3 gun shots on her property (which she believes occurred when she complained to the RCMP about the courts), and long-termdisability and cancer care.

Again, none of these are her actual expenses or liabilities. [141] Even in years when some of the higher expected repair or extraordinary expenses might materialize, the surplus in Ms.Omonova’s budget of income versus reasonable and likely monthly expenses will provide a sufficient cushion to be able to cover them,particularly now since child support has come to an end and she will receive a reimbursement of amounts previously paid. Current Income [142] The parties’ respective incomes are set out in the chart above under the child support analysis. [143] Ms. Omonova is currently 53 years of age.

Her 2020 Line 150 income is $67,767. She lives alone in the matrimonial homewhich was awarded to her in the divorce proceedings. In addition, at the present time, spousal support is owed to her in the amount of$450 per month, which is properly classified as taxable income, despite her protests that it was never received, and which was beingoffset by the child support payments she owed.

What variation should the Court order, if any? [144] The considerations that I must apply under s 17(7) of the Divorce Act are each entitled to equal weight and must be read incombination with s 15.2 of the Divorce Act relating to orders of spousal support. [145] As Lebrenz J recently stated at para 46 in JBL: “Nevertheless, the interplay between the factors addressed by s17(7) the Divorce Act, and the various common law principles are not always easy to resolve because they at times conflict and the Courtmust consider equal but sometimes competing factors.

As L’Heureux-Dubé emphasized in Moge v Moge, [1992] 3 SCR 813, [Moge], the objective of spousal support broadly is to relieve economic hardship arising from the marriage and itsbreakdown.” [146] The Divorce Order undoubtedly recognized that throughout the almost 20 years of marriage, and the birth of the parties’ twochildren, Ms. Omonova propped up Mr. Omonov’s career by assuming or taking care of the household in the so-called traditionalmarriage sense while Mr. Omonov pursued his Masters degree and PhD abroad. Ms.

Omonova’s efforts enabled him to obtain hisdegrees, even though they have not been lucrative in Canada as they are not recognized to the same level as they would be in his homecountry. [147] Looking at the totality of circumstances, it is the inevitable conclusion that Germain J recognized Ms. Omonova’s strong claimfor spousal support both on a needs-based analysis and based upon her strong compensatory claim. Ms. Omonova’s contributions shouldnot be underestimated. [148] However, the assessment ten years post-divorce demonstrates that Ms.

Omonova no longer needs spousal support, particularlyin view of the fact that the parties have achieved income parity and that Mr. Omonov is no longer in a better financial position overallthan her. [149] Despite her belief that she is owed a lifetime of spousal support and an amount increased to $2,000 per month, the evidenceshows that she has reached a level of self-sufficiency and any compensatory or non-compensatory basis for the support is now exhausted. She is not entitled to more than Mr.

Omonov has. [150] Based on a comparison of the net worth of each party, the annual income, and their budgets, they have similar economic

situations. They each have equity in real estate, a car with little value, and little to no savings. They both have mortgages and debts. Areview of both budgets indicates that there are no excessive expenses, and each lives frugally. [151] Each was allowed to keep their employer pensions. Mr. Omonov’s pension primarily increased in value post-separation. Ms.Omonova received the matrimonial home in the divorce, along with the vehicle and household contents. Mr. Omonov kept the landinterest in Uzbekistan which was not ascribed a value. [152] Ms.

Omonova also received spousal support of $275 per month, which was increased to $450 on May 3, 2017 due to theincrease in Mr. Omonov’s income over time. Initially she was the primary parent but that ended when the children moved out. In theten years since the divorce, the objectives of parity, independence, and self-sufficiency of the parties has been achieved. [153] Germain J signaled the eventual termination of spousal support in the Memorandum of Case Management Decision dated May3, 2017 at para 31: “She will realize and will reach a point in time where spousal support will end, but it is not yet.” Ms.

Omonovacannot be surprised by this development. [154] The Alberta Court of Appeal in Shields v Shields, 2008 ABCA 213 at para 30, states that while the Court must recognize theeconomic advantage or disadvantage arising from the marriage, “that objective cannot dictate a result which guarantees that the payorspouse must support the other infinitum.” [155] At para 55 of JBL, it was stated that: It is also noteworthy that the Supreme Court of Canada has refrained from categorizing self-sufficiency as a duty, and has insteademphasized that s 15.2(6)(

d) of the Divorce Act provides that one of the objectives of spousal support is, in so far as practicable, topromote self-sufficiency: Leskun v Leskun, 2006 SCC 25 at para 26 [Leskun]. As the Supreme Court of Canada in Leskun said atpara 27, referring to Moge and Bracklow v Bracklow, (SCC), [1999] 1 SCR 420, the “courts have an overridingdiscretion and the exercise of that discretion will depend on the facts of each case, having regard to the factors and objectives designatedin the Act.” [156] Section 17(7)(

d) of the Divorce Act directs me to consider efforts at achieving self-sufficiency. Ms. Omonova has modelled theexpectation of the legislation. Ms. Omonova is hard-working, tenacious, financially conservative, and is now self-sufficient andindependent. [157] Having regard to all of the above factors and the evidence, I conclude that the Last Variation Order shall be varied effectiveDecember 31, 2021 such that Mr. Omonov’s obligation to pay spousal support will come to an end. [158] I have added in an additional delay in extinguishing the spousal support to permit Ms. Omonova to adjust to the changes.

At thetime of the hearing, she was on STD disability and was expected to return to work; she will be required to catch up on the deferredmortgage payments. Given the credit she will receive from the termination of her child support obligations, any short-term deficits willbe mitigated. c. Should the suspension of spousal support from April 2020to present be lifted? [159] Mr. Omonov believed the suspension of his support payments from April 2020 would be permanent and asks this Court to orderMEP to restate the arrears accumulated as zero for the period in question.

I explained to him that the suspension was with respect to thepayment of the support given his uncertain employment situation, but that the arrears would continue to be calculated without penalty. Now that this Court is informed that his actual 2020 income was $67,767, which is approximately $10,000 lower than in 2019, thesuspension is ordered to be lifted and payment of the arrears is due. The amount of $450 per month is still within a reasonable range forthe income generated and I therefore find no reason to adjust it. VII.

Conclusion [160] As of January 2020, Sherzod is no longer a child of the marriage. [161] Any amounts that Ms. Omonova paid through MEP towards child support payments (s 3 and s 7) from January 2020 to presentshall be credited back to her account and reimbursed as part of the total combined arrears owed to her commencing January 2022. [162] Mr. Omonov shall cease paying spousal support as of December 31, 2021. [163] The spousal support stay is lifted and the monthly spousal support payments of $450 per month shall recommence as of April 1,2021.

The spousal support arrears accumulated during the stay from April 2020 to present in the amount of $5,400 shall be payable aspart of the total combined arrears (with child support reimbursement owed). [164] Any child support and spousal support arrears payable by Mr. Omonov shall be paid at a rate of $500 per month commencingJanuary 1, 2022. [165] The parties shall be at liberty to serve each other with any future materials related to this action by email. [166] Neither party shall be entitled to costs arising from this decision.

Heard on the 4 th day of March, 2021. Dated at the City of Edmonton, Alberta this 7 th day of April, 2021. A. Loparco 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 _______________________________________________________ Corrigendum of the Judgment of The Honourable Madam Justice A. Loparco _______________________________________________________ A stylistic change has been made to paragraph 112 as follows: “ In JLB v WMB , 2019 ABQB 323 [JLB] ” was changed to “ In JLB v WMB , 2019 ABQB 323 [ JLB ]”. _______________________________________________________

Corrigendum of the Judgment of The Honourable Madam Justice A. Loparco _______________________________________________________ The following paragraphs have been amended, with the source indicated in the footnotes, to include citations that were missed in the original publication of the decision: - Paragraphs 46-49; - Paragraph 54; - Paragraph 61; - Paragraph 74; - Paragraph 77; - Paragraph 79; - Paragraphs 112-114; - Paragraph 117; - Paragraph 145; - Paragraph 155.