Leaman v Leaman, 2021 ABQB 437

Court of Queen’s Bench of Alberta Citation: Leaman v Leaman, 2021 ABQB 437 Date: 20210603 Docket: 4803 187814 Registry: Edmonton Between: Stacey Lynn Leaman Plaintiff - and - Matthew Roger Leaman Defendant _______________________________________________________ Endorsement of the Honourable Mr.

Justice Peter Michalyshyn _______________________________________________________ [ 1 ] On October 22, 2020 the parties through counsel agreed to seek a decision of the court by way of Desk Application with Written Argument. [ 2 ] The Family Docket Court endorsement filed October 22, 2020 confirms the application was to deal with ongoing and retroactive child support and spousal support, as well as an application to dispense with consent of the Father to counselling for the children. [ 3 ] Counsel also agreed to a Trigger Date of October 9, 2020 for Practice Note 2 purposes.

[ 4 ] The applicant Mother then filed her October 23, 2020 application and affidavit in support seeking various relief including custody and travel. [ 5 ] The respondent Father submitted a cross-application and affidavit sworn November 6, 2020 in support for undue hardship. The cross-application and affidavit were never filed. Nor was any application made in Family Docket Court for permission to bring the cross-application.

Fiats have been sought to allow the cross-application and affidavit to be filed and before the court. [ 6 ] The Father’s affidavit is sworn not only in support of undue hardship but also in response to the Mother’s October 23, 2020 application for child and spousal support. The Father’s affidavit is silent with regard to the issue of counselling for the children. [ 7 ] The Mother’s confirming letter was filed on December 11, 2020. The Father has filed no confirming letter. [ 8 ] These matters were assigned to me in late April, 2021.

On April 29, 2021 I asked counsel for brief written submissions whether I should decide the questions raised on the basis of materials already available to me, or provide the Father an opportunity to have his materials filed outside of Family PN2. [ 9 ] For reasons which follow.

I am proceeding to decide the desk application based on 1) the issues permitted only by the October 22, 2020 FDC endorsement and 2) the materials properly filed. [ 10 ] As will be noted, any consideration of the Father’s unfiled materials is largely irrelevant as his affidavit sworn November 6, 2020 fails utterly to materially address the Mother’s causes or indeed his own cause for undue hardship. [ 11 ] In deciding this threshold point of what issues and materials are properly before me, I have had regard for the letter submissions of counsel for the Father dated May 7, 2021 and for the Mother dated May 11, 2021.

Over the objections of the Mother, the Father seeks permission to file his materials. Counsel does not identify what materials she seeks permission to file. Apparently these materials existed when counsel wrote her May 7, 2021 letter, as it was asserted the materials “are prepared and can be submitted within a day”. No draft materials were attached to the May 7, 2021 letter. In particular, no draft Confirming Letter is even specifically referred to.

It is a common, if not ‘best practice’, that a Fiat-to-file request be accompanied by a draft of the very thing sought to be filed. [ 12 ] The May 7, 2021 letter, read alongside the detailed response letter with attachments of the Mother’s counsel, fails to persuade me that I should provide the sought-after extension.

As noted, even if I was prepared to consider the Father’s unfiled application and affidavit, I would conclude they add nothing material to what I have to decide. [ 13 ] I have reviewed the Mother’s affidavit filed October 23, 2020 and Confirming Letter. [ 14 ] As to the Father’s income, the Mother notes that the Father had income of about $116,230 in 2016. In 2017, the first year after separation, the Father reported dramatically reduced income of $8,106.

In 2018 he reported income of $21,971. [ 15 ] Understandably the Mother does not accept the 2017 or 2018 reported incomes at face value. [ 16 ] The Father has had ample opportunity to explain his earnings history. Aside from failing to file material affidavit evidence, the Father has not responded appropriately to multiple Notice to Disclose applications. [ 17 ] For reasons stated in her evidence and in her counsel’s Confirming Letter, the Mother seeks to impute income for 2017 and 2018 of $40,000.

She seeks the same income be imputed for 2019 and 2020, and going forward until further order. [ 18 ] The imputed income of $40,000 results in s 3 child support payments of $582/month. It also results in the father paying 36.4% in s 7 expenses, based on the Mother’s disclosed income. [ 19 ] Invoking DBS v SRG, 2006 SCC 37 and like cases, the Mother seeks retroactive child support net of the one payment the Father has made of $355.

The Mother seeks retroactive support from June 1, 2016 being the first month after the parties separated, and based on an assertion that the Father has engaged in blameworthy conduct by failing to disclose his income. [ 20 ] Child support arrears based on the Mother’s position as summarized above would be $41,407 (as set out at TAB 11 of her Confirming Letter), or $51,207 if spousal support arrears of $9,800 are included. [ 21 ] The Mother seeks payment of child support through the Maintenance Enforcement Program, with arrears being payable at $450/month. [ 22 ] The Mother’s Confirming Letter does not address retroactive spousal support.

I decline to order same, although of course spousal support can be pursued in due course at trial. [ 23 ] For the reasons stated in the Mother’s Confirming Letter, and in her sworn and filed evidence to which the Father has not responded (or to which he has not responded, materially, even in his sworn but unfiled materials), I award the child support sought based on the 2016-2020 incomes set out at TAB 11 of the Mother’s materials, and going forward until further order. [ 24 ] As alluded to above, there is nothing in the Father’s unfiled material (including his unfiled affidavit of November 6, 2020) which supports a hardship application.

His materials disclose nothing other than a proverbial ‘bald or vague assertion of hardship’. [ 25 ] Noting her evidence and the father’s lack of any evidence in opposition, the Mother’s application regarding counselling for the children is granted. [ 26 ] Given the limits imposed by the Family Docket Court endorsement, I make no order with regard to custody or travel. [ 27 ] Costs are awarded on Column 1 together with reasonable disbursements. Fees should be based on the Family Docket

Appearance and on a Contested Application with Brief. These costs should be made enforceable through the Maintenance Enforcement Program. Heard by Desk Application assigned April 28, 2021. Dated at the City of Edmonton, Alberta this 3 rd day of June, 2021. Peter Michalyshyn J.C.Q.B.A. Appearances: Anne-Marie Lowther for the Plaintiff Jyoti Venkateshwaran for the Defendant