Vydra v Vydra, 2021 ABQB 53

Court of Queen’s Bench of Alberta Citation: Vydra v Vydra, 2021 ABQB 53 Date: 20210121 Docket: 4803 152525 Registry: Edmonton Between: Catherine Louise Vydra Plaintiff - and - Martin Vydra Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice James T. Neilson _______________________________________________________ [ 1 ] The parties to this action entered into an Amended Divorce Judgment, Corollary Relief and Property Judgment Order filed on July 3, 2012, following a comprehensive binding Judicial Dispute Resolution before Justice A.

Germain on November 4, 2011. [ 2 ] The Defendant Applicant Martin Vydra (“Martin”) applies for an order that spousal support be terminated as of January 1, 2020 and an order that the Plaintiff, Respondent Catherine Louise Vydra (Riddle) (“Catherine”) pay to Martin an equalization payment in the sum of $29,644.18 plus interest pursuant to the Judgment Interest Act. [ 3 ] Catherine has filed a cross application fixing retroactive

section 3 child support for the two children of the marriage based on Martin’s true guideline income for the years in which it was payable, and granting Catherine judgment for the tax free lump sum spousal support payment contemplated by the Divorce Judgment representing 10% of Martin’s averaged gross income in 2018 and 2019. A. Equalization Payment [ 4 ] The Amended Divorce Judgment provides that, after all adjustments are made for the division of matrimonial property, Catherine shall pay to Martin the sum of $49,585.30 due and payable on December 31, 2016 without interest on payments until December 31, 2016.

Martin secured this amount payable by registering an unpaid vendors lien caveat against the former matrimonial home. [ 5 ] Catherine did not pay the equalization payment by December 31, 2016. Martin then registered a Writ of Enforcement.

Thereafter, the sum of $19,941 was garnished from Catherine’s account, leaving the balance owing of $29,644.30 plus interest. [ 6 ] Catherine does not dispute the amount owing. Accordingly, there will be judgment in favour of Martin against Catherine in the amount of $29,644.30 plus interest pursuant to

section 6 of the Judgment Interest Act from December 31, 2016 to the date of payment, applying the annual interest rates set by regulation. B. Spousal Support [ 7 ] Pursuant to the Amended Divorce Judgment, Martin was ordered to pay to Catherine for her maintenance and support the sum of $7,000 per month commencing the first day of January 2012 and continuing on the first day of each and every month thereafter until December 31, 2015 unless there is a court order to the contrary.

Commencing January 1, 2016, absent an order to the contrary, Martin was ordered to pay to Catherine spousal support in the sum of $3,500 per month payable on January 1, 2016 and commencing the first day of each and every month thereafter until further order of the court or agreement of the parties. The judgment provided that spousal support can be reviewed by either party on the basis of a material change in circumstances and be reviewed in any event, after it has been received for a 10 year time period beginning January 1, 2020.

The judgment further provided that “should spousal support terminate prior to January 1, 2020 by court order or agreement, the Defendant shall pay to the Plaintiff a further final tax free lump sum spousal support payment equal to 10% of his averaged gross income, averaged over the previous two years prior to the cessation of support.” [ 8 ] Justice Germain provided the parties with his binding JDR speaking notes with comments reflecting his opinions on the issues before him.

On the issue of the tax free lump sum payment, Justice Germain stated as follows: Further, if by court order or agreement, the spousal support ends prior to January 1, 2020 (that is it has run a full 10 years from January 1, 2010 but does not continue thereafter), then Mr. Vydra will be obliged to make a final tax free lump sum payment equal to 10% of his average gross annual salary, averaging the two years prior to this obligation. It is expected that Ms. Vydra will put that money into her RRSP unused contribution room or utilize it to pay down any of the equalization payments that may still be owing.

While my order today is an indefinite one, the incorporation of this bonus payment into the end of the support regime really reflects my thought process, that despite the length of this marriage, barring unforeseen unfortunate circumstances, Ms. Vydra should not expect to receive spousal support for more than 10 years total. [ 9 ] Following submissions on this application and cross-application, the parties entered into a consent order dated September 9, 2020 which provides as follows: It is ordered that spousal support payments as outlined in the Amended Divorce Judgment of the Honourable Justice A. W.

Germain filed July 3, 2012 are hereby terminated as of September 30, 2020 and therefore there shall be no further spousal support payments from Martin to Catherine as of September 30, 2020. [ 10 ] Although it was contemplated by Justice Germain that spousal support in favour of Catherine would not extend beyond January 1, 2020, Martin continued to pay spousal support through the maintenance enforcement program (MEP) in the amount of $3,500 a month, MEP not having received an order to the contrary.

The parties agreed that those monthly payments should stop, hence the consent order. [ 11 ] However, there remained the issue of the lump sum. In reading the terms of the Amended Divorce Judgment and the speaking notes of Justice Germain, I conclude that it was contemplated that, should spousal support payments continue for the full 10 year period, then those monthly payments should end and Martin should pay the tax free lump sum payment as contemplated.

As Justice Germain noted, Catherine should not expect to receive spousal support for more than 10 years total. [ 12 ] Martin has submitted his income information for 2018 and 2019, which I find to be the applicable years for the calculation for the lump sum. The 2018 income will not include capital gains from investments which Martin made in 2018 or payment of his RRSPs from his employer when he retired, the pensions having already been divided pursuant to the property order. The average income for the purposes of this calculation for 2018 and 2019, is therefore $465,397.81.

Ten percent of that figure comes to $46,539.78, representing the tax free lump sum payment. [ 13 ] However, because monthly support payments continued to be made from January 1, 2020 to September 30, 2020, those amounts should be subtracted from the tax free lump sum. Monthly support payments of $3,500 had been made for a period of these nine months, totaling $31,500. Subtracting those payments from the tax free lump sum payable by Martin to Catherine equals $15,039.78.

Catherine will have judgment against Martin in that amount, plus interest from January 1, 2020 until the date of payment pursuant to the Judgment Interest Act . C.

Child Support [ 14 ] There were two children of the marriage: Zach, born August 5, 1993 and Mark, born October 17, 1996. [ 15 ] In the Amended Divorce Judgment Martin was ordered to pay ongoing maintenance for the children of the marriage in the sum of $5,330 per month, commencing January 1, 2012 and to continue on the first day of each and every month thereafter until the child is no longer a child of the marriage as defined by the Divorce Act or until further court order. For the purposes of the order, Martin’s 2011 guideline income was $395,000.

Catherine’s earned guideline income for 2011 was effectively nil. [ 16 ] Catherine applies to have the children’s child support payments recalculated, based on Martin’s actual gross income earned since 2011, on the basis that the sons have continued to be children of the marriage as defined. [ 17 ] Martin paid child support through MEP beginning January 1, 2012 in the amount of $5,330 a month. However, there was no

adjustment made to the monthly child support amount based on increases in Martin’s annual income. As early as May 2013, Martin had requested MEP to review the amount of child support payable. In March 2016 MEP issued a decision that the older son, Zach, had ceased to be a child of the marriage since July 1, 2012. From there, only Mark continued to be a child of the marriage and the monthly child support payment for him was in the amount of $3,392. This resulted in a claw back by MEP of the overpayment by Martin to Catherine for the portion of the child support attributed to Zach.

Effectively, Catherine did not receive any support payments for the period February 2017 – February 2018. Catherine appealed the MEP decision but MEP upheld its original decision. She did not make application to the Court for a determination of this child support issue until November 2017.

That application was adjourned sine die and Catherine reasserts her claim in her cross application filed March 12, 2020. [ 18 ] Catherine continued to receive child support for Mark until November 2018, when MEP declared that Mark was no longer a child of the marriage as of his 22 nd birthday. [ 19 ] Now, Catherine asserts that both Zach and Mark continued to be children of the marriage up until early 2020 and the child support payments ought to be recalculated given Martin’s actual annual gross income figures since 2011. She claims to be owed the total sum of $509, 960 as the result of this recalculation.

Martin objects strenuously to this claim, on the basis that Zach ceased to be a child of the marriage as of July 1, 2012 and Mark as of November 2018. Furthermore, Catherine had not taken proceedings previously or put Martin on notice of this claim for increased child support payments and cannot pursue the claim now as the result of the decision of the Supreme Court of Canada in D.B.S. v S.R.G. et al , 2006 SCC 37 .

Catherine could not seek retroactive support for Zach as he was “not a child of the marriage” when her application was made. [ 20 ] Catherine further asserts that Martin was engaged in misconduct in not fully disclosing changes in his annual income. Martin disputes this, pointing to correspondence with attachments as to his income in years following 2011.

On the other hand, Martin asserts that Catherine herself has engaged in misconduct in refusing to produce her annual income figures, following her return to the workforce as a registered nurse. [ 21 ] Catherine, for her part, notes that she had taken steps as early as 2013, by having her counsel serve a notice to produce records. This could suffice as notice contemplated by the Federal Child Support Guidelines: D.B.S. supra at paragraph 150 per Bastarache, J.; Brear v Brear , 2019 ABCA 419 at paras 23-28 .

Furthermore, she made application to the court seeking retroactive and ongoing child support in November 2017 which was adjourned sine die . [ 22 ] The Supreme Court of Canada in Michel v Graydon , 2020 SCC 24 , distinguished the D.B.S. decision as it related to notice requirements in the context of the British Columbia Family Law Act . The Court noted that Courts must not create barriers, for example, by notice requirements when the issue is whether child support is properly payable as a debt, not just by statute, but also by common law obligations for support.

The notice requirement in D.B.S. related specifically to an original order for child support under

section 15.1 of the Divorce Act . The Court noted that this notice requirement may not also apply to section 17(1) of the Divorce Act , which does not make mention of “child of the marriage” with respect to variation of an existing order. In this case, the original child support order was made in 2012. The majority of the Supreme Court in Michel , however, declined to make a definitive ruling on whether the notice requirement in D.B.S. would also apply to a variation order under

section 17 of the Divorce Act , so this remains an open issue for another day. [ 23 ] Section 2(1) of the Divorce Act defines “child of the marriage” to mean a child of two spouses or former spouses who, at the material time,

a) is under the age of majority and who has not withdrawn from their charge or,

b) is the age of majority or over and under their charge but unable by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [ 24 ] Courts have interpreted “or other cause” to include, among other things, pursuing post secondary education after reaching the age of majority. i.

Zach Vydra [ 25 ] Although this Court is urged by Catherine to grant jurisdiction for the retroactive review and recalculation of child support payable in respect of Zach, I conclude however, that Zach did cease to be a “child of the marriage” as of July 1, 2012 and so no further child support is payable in respect of him. [ 26 ] Catherine contends that her son Zach has needed and required help, guidance and support to launch successfully into adulthood. He has been under medical care for OCD and anxiety for which he has been prescribed medication.

He was expected to graduate with a science degree at MacEwan University at the completion of two chemistry courses in the 2020 spring/summer session.

Catherine takes the position that Zach had been and continued to be a child of the marriage throughout, since July 1, 2012 until his graduation. [ 27 ] Where support is sought for an adult child pursuing post secondary education or vocational training, the onus of demonstrating that the child cannot provide for himself or herself and is, therefore, unable to withdraw from the parent’s charge, rests with the applicant seeking child support; Albo v Albo [2006] AJ 1330 (QB) : Kohan v Kohan , 2016 ABCA 125 at para 20 . [ 28 ] I find that Catherine has not met the onus upon her to demonstrate that Zach continued to be a child of the marriage after July 1, 2012.

The record does not disclose that Zach was “unable to withdraw” from Catherine’s charge or to obtain the necessaries of life. [ 29 ] With respect to illness, having reached the age of majority, Zach is responsible for receiving his own medical care and has been doing so.

[ 30 ] As for post secondary education, as deposed in affidavits before this Court, Zach was working and was not attending post secondary schooling on a full time basis after finishing high school in 2012. He did attend post secondary education at the University of Alberta in 2013, Athabasca University in 2014 and MacEwan University in 2015. There is no evidence specifying the courses that were taken in those years or whether they related to a specific career path or goal. He was ultimately in a position to graduate in 2020 having pursued summer courses.

However, the evidence is that Zach has been working as well as pursuing post secondary education on part time basis. In 2015-2016 Zach worked in the restaurant industry. In 2017, he worked as a location manager for a company filming a commercial for a top tier clothing company. Martin testified that Zach is an accomplished movie producer, set designer and actor and had received accolades for the same. He has also worked at numerous other jobs, which he has been compensated for since he graduated from high school in 2012.

He has also been sponsored by Loop and Rey who are a fishing product manufacturer as he is an accomplished fly fisherman. [ 31 ] While Zach continued to live at home with his mother, the evidence does not establish that, being of the age of majority or over, he was unable, by reason of illness, disability, or other cause, to withdraw from her charge or to obtain the necessaries of life. [ 32 ] The application by Catherine for retroactive child support in relation to Zach is dismissed. ii. Mark Vydra [ 33 ] Mark has continued to live at home with his mother.

Notwithstanding certain learning deficits which have required accommodation, he has pursued and completed a Bachelor of Commerce degree at Grant MacEwan University, in April 2020. [ 34 ] There is no evidence before the Court to support the assertion by MEP that Mark ceased to be a child of the marriage as of his 22 nd birthday. The decision by MEP appears to have been an arbitrary one.

Mark was continuing with his academic studies, modified to accommodate certain learning deficits, and he completed those studies successfully in April 2020. [ 35 ] Therefore, I direct that child support payments in respect of Mark are properly payable for the period November 2018 to April 2020. [ 36 ] Furthermore, I direct that the amount payable will continue to be the previous support amount payable in respect of Mark, namely $3,392 a month. This guideline amount had been set in the Amended Divorce Judgment in 2012 based on Martin’s guideline income of $395,000.

Martin has experienced a growth in his annual income since that time, which could justify a recalculation of child support benefit payments for Mark. However, I must also take into account the fact that, over the years, Martin has provided other support for Mark in many ways, including the purchase of a car, payment of insurance, provision of a credit card for extraordinary expenses, numerous vacation trips, tuition and other educational expenses through an RESP, and in addition to that where education expenses were not covered by the RESP.

Catherine has continued to provide food and lodging for her son, as well as support and guidance for Mark given his limitations. I find that, notwithstanding the divorce, Mark continued to enjoy a standard of living in a material sense consistent with what he enjoyed before reaching adulthood. I find, though, that monthly support in the amount of $3,392 is an appropriate support amount meeting the means and needs of Mark, payable by Martin to Catherine for the period of November 2018 to April 2020.

This covers a period of 17 months for a total payment of $57,664. [ 37 ] Catherine will have judgment against Martin in the amount of $57,664 plus interest pursuant to the Judgment Interest Act from April 30, 2020 until the date of payment. D.

Summary a. With respect to the equalization payment, judgment is granted in favour of Martin against Catherine in the amount of $29,644.30 plus interest pursuant to the Judgment Insurance Act from December 31, 2016 to the date of payment; b. With respect to the final tax free lump sum spousal support payment, judgment is granted in favour of Catherine against Martin in the amount of $15,039.78 plus interest from January 1, 2020 until the date of payment pursuant to the Judgment Interest Act. c. With respect to child support i.

Catherine’s application for retroactive child support in relation to Zach is dismissed; ii. Catherine’s application for retroactive child support in relation to Mark is granted in the amount of $57,664, plus interest pursuant to the Judgment Interest Act from April 30, 2020 to the date of payment. E. Costs [ 38 ] Martin was successful in obtaining judgment for the balance of the equalization payment owing. This amount was not contested. The application by Catherine with respect to retroactive child support for Zach is dismissed.

However, Catherine has been successful in recovering the 10% tax free lump sum in respect of spousal support, and the continuation of child support in relation to Mark up to April 2020. Accordingly, Catherine will recover costs of the application and cross-application (considered together as a single cost award) under Column 2 of

Schedule C of the Rules of Court . Heard on the 9 th day of September, 2020 with supplementary submissions on the 30 th day of September 2020.

Dated at the City of Edmonton, Alberta this 21 st day of January, 2021. James T. Neilson J.C.Q.B.A. Appearances: Norman Picard, QC Barr Picard Law for the Plaintiff Catherine Vydra (Riddle) Terri-Lynn McLaughlin Jenkins & Jenkins for the Defendant Martin Vydra