Salehi v Babrak, 2021 ABQB 598

Court of Queen’s Bench of Alberta Citation: Salehi v Babrak, 2021 ABQB 598 Date: 20210729 Docket: 4803 178655 Registry: Edmonton Between: Samiullah Salehi Plaintiff/Applicant - and - Parwin Babrak Defendant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Applicant, Mr. Salehi, seeks an Order vacating this Court’s Order of January 18, 2021 which set Mr.

Salehi’s annual Guideline income on a minimum wage basis per annum, imputed at $31,200, resulting in ongoing child support payable in the amount of $647.28 for the three children of the marriage. The father argues that the January 18, 2021 Order should be set aside on the basis of res judicata , since this Court’s Consent Order granted on January 19, 2018 was the final Order. The January 19, 2018 Consent Order between the parties set Mr. Salehi’s 2017 annual income at $10,547.46, and set his ongoing

section 3 child support obligations at $0. [ 2 ] Mr. Salehi’s position that the January 19, 2018 Consent Order was the final Order reflecting the terms agreed to between the parties is untenable. Paragraph 4 of the Consent Order clearly stated that “the child support terms in this Order shall be on an interim

without prejudice basis”. Furthermore, with respect to ongoing

section 3 child support, the Consent Order specifically provided that the issue of ongoing

section 3 child support would be reviewed pursuant to paragraph 12 of that Consent Order, on or after June 1, 2018; and that after June 1, 2018, either party could file an application to review child support with the Court and serve their application on the other party. Paragraph 13 of that Consent Order required the exchange of financial information on an annual basis. [ 3 ] Therefore, it is simply not possible that the January 19, 2018 Consent Order was the final Order between the parties. [ 4 ] This Court’s January 18, 2021 Order in favour of Ms. Parwin Babrak was properly granted. Mr.

Salehi had not disclosed his financial information, and Mr. Salehi was not present in Court on January 18,2021. His income was imputed at the minimum wage for Alberta at $31,200 a year. Ms. Babrak’s application was specifically contemplated within the terms of the January 19, 2018 Consent Order between the parties. [ 5 ] If any variation is to occur on this Court’s January 18, 2021 Order, it will only be done after a material change has been shown. Mr. Salehi has failed to show any material change in circumstances since the January 18, 2021 Order. [ 6 ] Moreover, Mr.

Salehi continues to be unemployed, and there is a clear pattern of underemployment in this case since 2012. Our Court of Appeal’s decision in Hunt v Smolis-Hunt , 2001 ABCA 229 does not assist Mr. Salehi. Mr. Salehi currently is suffering from unknown medical conditions, and he has a lengthy history of having a series of unfortunate medical conditions and accidents that affect his employment record adversely. A negative inference can be drawn with respect to this pattern of a lack of consistent employment earnings.

He has also not provided timely financial disclosure pursuant to the 2018 Consent Order. [ 7 ] Some of the financial information Mr. Salehi has provided has been unsubstantiated and is unreliable. Mr. Salehi, in addition to being in Afghanistan on January 18, 2021 when Ms. Babrak brought her court application, has made a number of trips to Afghanistan while having little or no reported income to justify these expenditures. Mr.

Salehi has provided self-serving evidence with respect to family members and friends who have allegedly paid for his trips, as well as paid for his living expenses, but these pieces of evidence cannot be independently verified. [ 8 ] Mr. Salehi also had a corporation that appeared to have significant revenues, notwithstanding he paid no child support. In this regard, our Court of Appeal in Cunningham v Seveny , 2017 ABCA 4 made it quite clear from paragraph 1 onward of that decision that Mr.

Salehi was the party that has to explain why his corporation failed to have any meaningful net income, and the impact that these corporate expenses has had on his child support obligations. It is not up to Ms. Babrak to provide a prima facie basis for questioning Mr. Salehi’s corporate income disclosure. [ 9 ] In conclusion, this Court grants Ms. Babrak’s application and this Court’s Order of January 18, 2021 shall remain in full force and effect. Mr.

Salehi will continue to pay ongoing child support in the amount of $647.28 on the basis of an annual imputed income of $31,200 (Alberta’s minimum wage) calculated on an annual basis. His child support arrears from January 1, 2019 to December 31, 2020 shall be set at $15,534.72, based on the imputed income of $31,200 per year, for 2019 and 2020. Mr. Salehi is also responsible for 65% of

section 7 expenses, and Ms. Babrak is responsible for 35% of

section 7 expenses, commencing January 1, 2021. [ 10 ] Upon the production of all undertakings given by Mr. Salehi during his Questioning, Ms. Babrak shall be at liberty to recalculate Mr. Salehi’s income for purposes of ongoing and retroactive child support. Ms. Babrak is awarded costs of this application. Heard on th e 8 th day of July, 2021. Dated at the City of Edmonton, Alberta this 29 th day of July, 2021. Donald Lee J.C.Q.B.A. Appearances: Katie Noel for the Plaintiff/Applicant Ajay Devgun for the Defendant/Respondent