Durette v Lapawa, 2021 ABQB 466

Court of Queen’s Bench of Alberta Citation: Durette v Lapawa, 2021 ABQB 466 Date: 20210616 Docket: FL03 61657 Registry: Edmonton Between: Jody-Anne Judith Durette Plaintiff - and - Nichole Marie Lapawa Defendant _______________________________________________________ Endorsement of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ [ 1 ] These are interim applications and cross-applications heard in special chambers dealing with child and partner support including the determination of the parties’ incomes and the impact of s 9 of the Child Support Guidelines .

An issue also arises regarding a jointly-owned home. [ 2 ] The applicant Lapawa and respondent/cross-applicant Durette began their relationship in December, 2011 and separated in August, 2019. They have two children of their relationship, both under the age of 7.

Primary or shared parenting [ 3 ] There is conflicting evidence as to whether, after the parties’ separation, there was a brief period of time, four months, in which the children were in Lapawa’s primary care. I am unable to resolve the conflicting evidence. Nevertheless some amount should be ordered, again on an interim and without prejudice basis, for this brief retroactive period of child support wherein the parties are unable to agree on the nature of parenting. Those four months aside, the parties do agree that since December, 2019 parenting has been shared.

For the purposes of this interim application I will proceed on the basis the parenting has been shared throughout. I will address s 9 considerations later in these reasons. Disclosure of incomes [ 4 ] Each party objects that the other has failed to disclose income. [ 5 ] Lapawa says Durette admitted to earning extra, undisclosed income. Lapawa points to a November, 2020 undertaking request in that regard that was not answered by the time materials needed to be filed for the special chambers application. Lapawa seeks an adverse inference but just what that inference should be is not disclosed.

There is no indication that Lapawa sought an order compelling answers to undertakings. Nor was there any suggestion the special chambers application should be adjourned to allow a reasonable time for undertakings to be answered. All of that to say, the court has no good information with regard to what actual extra, undisclosed income Durette may have for any period of time material to the application. [ 6 ] Durette says Lapawa too has undisclosed income.

Lapawa however has sworn some evidence that this income is no more than $5,000. [ 7 ] Durette has disclosed significant earnings for 2019 of $91,055 and for 2020 of $74,304. Lapawa takes no serious objection to the 2020 dip in income.

Nor does it appear in dispute that Durette’s 2021 income is expected to be back in the $91,000 range. [ 8 ] For the purpose of this interim application and given the quality of evidence before me on the questions of extra, undisclosed income of both parties, I will proceed in Durette’s case on the incomes stated in the CRA income tax returns and what is expected, going forward, and in Lapawa’s case, as will be noted, on the basis of CRA income tax returns, plus $5,000 in the year in question.

Imputing income [ 9 ] Based on counsel’s Confirming Letter, Durette seeks to have an annual income of “no less than $40,000” imputed to Lapawa. This is on the basis of Lapawa’s historical earnings in the mid-$50,000s which Durette says is more indicative of Lapawa’s true earning capacity. [ 10 ] Durette points to many questions regarding Lapawa’s hours of work, disclosure of extra earnings and other deposits, efforts to find higher-paying employment, and the like.

These questions are not evidence; they provide me with no answers or even guidance regarding Durette’s cause that I should impute an income to Lapawa of $6,000 more than the $34,000 she already says she makes. [ 11 ] In terms of s 19 of the Child Support Guidelines , I am not persuaded that Lapawa is intentionally unemployed or under- employed.

Nor am I persuaded that even with the questions raised, that Lapawa – any more than Durette herself in terms, for example, of unanswered undertaking responses – is clearly off-side any legal obligation to provide income information, again in the context on a special chambers application which is not a trial. [ 12 ] What’s more, there is evidence in dispute with regard to why Lapawa left her employment in 2019 in favour of a lower- earning job. I am unable to resolve the disputed evidence on this interim application.

That said, I am not prepared to ignore the income that Lapawa has disclosed for CRA income tax purposes. Those incomes are: 2018, $53,673; 2019, $29,752; and 2020, $29,000; as noted above, Lapawa puts her 2020 income at $34,000 once including an estimated $5,000 in extra income. Spousal support [ 13 ] I make no interim award of spousal support either retroactively or going forward. [ 14 ] Durette argues persuasively that on the evidence there is no entitlement. Most of Lapawa’s evidence in support of spousal support conflicts with Durette’s.

For example, the parties do not agree whether Durette was ever “the breadwinner” of the family; whether Lapawa was at all disadvantaged by her role in the relationship or by its breakdown; whether by reason of any agreement or otherwise, that Lapawa uniquely stayed home with the children or that by doing so she sustained any disadvantage in her employment or career. [ 15 ] The children were born in 2014 and 2015.

There is little undisputed information that Lapawa’s income diminished then or thereafter – by reason of parenting obligations. [ 16 ] Other than a vague reference to mid-point figures in a Childview printout in the Confirming Letter, no principled basis is set out for any interim order for spousal support set out on Lapawa’s behalf. [ 17 ] Conceivably there is better evidence or arguments relevant to spousal support but no such material is before me.

Family home [ 18 ] Lapawa continues to live in the family home. With the exception of two payments on the mortgage by Durette, the evidence suggests Lapawa has covered the mortgage payments. Durette has concerns for Lapawa’s ability to carry on with the mortgage. I agree with Lapawa however that those concerns are speculative at this time. Durette is content to leave Lapawa in the home until mortgage renewal, subject to an order however that if Lapawa defaults on a mortgage payment before renewal, she will relinquish the mortgage and house title to Durette within 30 days, without further application.

I am not persuaded that any order should be granted. [ 19 ] In Lapawa’s Confirming Letter a claim for Exclusive Possession is raised. No such claim is advanced in the pleadings and is a non-starter in the application before the court. Child support [ 20 ] As a starting point, interim child support will be set on the basis of shared parenting throughout from the parties’ separation in August, 2019. Incomes are those already mentioned for 2019, 2020 and (expected) 2021. To reprise, Durette’s incomes are 2019, $91,055; 2020, $74,304; and 2021 (expected), $91,000.

Lapawa’s are 2019, $29,752; 2020, $34,000; and 2021 (expected), $34,000. [ 21 ] Based on 2021 incomes table s 3 child support would be $1,335 (Durette) and $511 (Lapawa) with a set-off, if applicable, of $824 (Durette). [ 22 ] Durette argues for significantly decreased child support obligations – to $200/month – after the application of s 9 of the Child Support Guidelines .

Regarding the “conditions, means, needs and other circumstances” of each spouse, Durette points to: - The need to impute “at least $50,000” in annual income to Lapawa; - The fact Lapawa is not receiving/pursuing support from a payor parent of other children living in her household; - The fact that Durette’s current spouse has four children and receives only a disability pension, and that Durette has significant financial obligations to this ‘side’ of the family that, combined with $824 in straight set-off child support, would cause hardship; - The fact that Durette services debts of more than $35,000 from the Durette-Lapawa relationship, and has paid certain expenses for Lapawa’s benefit including home insurance, cell phone, and “the full cost of children’s expenses”; - Durette also points to two payments on the mortgage totalling over $5,000 and another estimated $2,000 for other expenses already mentioned, all in 2019; - For 2020 no further mortgage payments were made, but there is evidence of ongoing home insurance and cell phone expenses paid by Durette at $300/month, and an undivided $7,700 payout of a motor vehicle insurance collision claim; in all, Durette suggests that more than $8,000 has been paid to Lapawa ‘in kind’ which should be reflected in appropriate s 9 child support for 2020.

Retroactive child support claim [ 23 ] As to the retroactive portion of the claim, again on an interim basis at this special chambers application I am not wholly persuaded by Durette’s evidence that all retroactive claims should be extinguished. However, I am even less persuaded by the evidence of Lapawa on these points. As such, on an interim, without prejudice basis I make no retroactive child support claim. Child support going forward [ 24 ] I come to a different conclusion regarding ongoing child support. [ 25 ] I acknowledge that at least in theory there are s 9 considerations.

The evidence however is wanting. As noted, on the evidence I have not been persuaded to impute income to Lapawa – either of $40,000 or $50,000 – both figures are mentioned in Durette’s Confirming Letter. As well, I have little concrete evidence regarding the alleged hardship Durette would suffer if called on to pay more than $200/month in child support – owing to what Durette allegedly must pay to support her existing household. I have no information regarding the status of the $35,000 in debt and what it is costing to service that debt.

Other than a reference to $300 for home insurance and cell phones, I have no other information to help me understand how much Durette is paying for the children’s expenses. [ 26 ] Based on the evidence, I am prepared to reduce the $824 in child support to $400/month, to account for the $300/month which is in evidence, and a small additional amount to take into account the likelihood there are some additional expenses being covered. I am not persuaded to made a further reduction on the basis of the hardship that Durette alleges would arise given her responsibilities to her current household.

Bilingual school [ 27 ] This issue is raised in Durette’s materials but not Lapawa’s. Durette is entitled to the order sought.

Costs [ 28 ] Success is divided on the application/cross-applications. Without more, the parties will bear their own costs. Heard on the 04 th day of March, 2021. Dated at the City of Edmonton, Alberta this 16 th day of June, 2021. Peter Michalyshyn J.C.Q.B.A. Appearances: Shelley Sillito Queck & Associates for the Plaintiff Jerry Kiriak Kiriak Law Office for the Defendant