Smaili v Smaili, 2021 ABQB 599

Court of Queen’s Bench of Alberta Citation: Smaili v Smaili, 2021 ABQB 599 Date: 20210729 Docket: 4803 180710 Registry: Edmonton Between: Maria Stella Aristeu Smaili Plaintiff/Respondent - and - Hussein Almeida Smaili Junior Defendant/Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] Mr. Smaili applies for an Order for ongoing and retroactive child support to be adjusted retroactively to the date of separation, with Ms.

Smaili’s annual income to be imputed on a minimum wage basis, at $31,200 per year. He also seeks a reassessment of possible MEP overcharges as a result of recalculated incomes, and an Order that he be compensated for any such surplus. [ 2 ] These parties were married in August 2015 and separated in early 2017. There is one child of the relationship who has recently turned 5 years of age. [ 3 ] Since their separation in early 2017, the parties have had shared custody of the child. In November 2019, a Divorce

Judgment was granted which set the father’s income at $28,900 and the mother’s income at $10,000 annually. The father then paid the mother $250 per month until a Stay of Enforcement was granted in January 2021. [ 4 ] The father deposes that he sustained an injury in March 2019 which continues to affect him currently, such that he is only able to work approximately 20 hours per week, resulting in an annual income of approximately $15,000.

The father has been able to keep his support payments current, largely by borrowing money, he says, from family and friends, and living with his family at times. [ 5 ] The mother is currently a full-time student attempting to obtain a level of English proficiency until at least January 2022, at which point she would like to enrol in an immigration consultant program. The mother deposes that she has health insurance through her work and has taken the child to the dentist for cleanings and check ups, but some of these costs have exceeded her health insurance coverage. For other

section 7 expenses like daycare, the mother deposes that the parties share the costs equally. [ 6 ] The mother deposes that the father is not forthcoming about his injury and his alleged inability to work full-time. She deposes that the father has previously worked as a mechanic and is skilled in mechanics. She deposes there were times when they resided together that people would bring their vehicles to their home and he would fix them for cash. Furthermore, she believes that the father continues to work part-time as a tow truck driver, and that he has the ability to work and earn a good income.

She deposes that the father gets paid in cash and does not declare what he actually earns. [ 7 ] The mother does acknowledge that she has worked from her own home before COVID-19 restrictions, doing things like eyelash microblading in 2017 and 2018. She was working at Cash Money Financial Services until she became a full-time student. The mother denies that she has been earning cash income by doing scalp micropigmentation, or otherwise, since COVID-19 restrictions came into effect. [ 8 ] Both parties have other children from different relationships.

The mother says she has full custody of another child from another relationship. [ 9 ] The father believes the mother is currently working, based on what their 5-year-old child has divulged to him in unsolicited comments when speaking about his time with his mother. Both parties accuse the other of being secretive about the nature of their employment and income despite repeated requests by the other party for financial information. [ 10 ] There is a disclosure issue with respect to the mother’s corporation as there has not been any Cunningham v Seveny , 2017 ABCA 4 disclosure by the mother.

Conclusion [ 11 ] This is an application by the father to impute income to the mother and to have a retroactive adjustment.

Our Court of Appeal’s decision in Hunt v Smolis-Hunt , 2001 ABCA 229 provides that income can only be imputed for child support purposes where the obligor has pursued a deliberate course of conduct for the purpose of evading child support obligations, and that this intention can be inferred with unemployment, under employment, or other acts of the obligor indicates a deliberate refusal to live up to the obligation to support one’s children. [ 12 ] Both parties allege essentially bad faith on the part of the other with respect to financial disclosure.

Both parties’ annual Guideline incomes have been set at modest amounts – the father’s at $28,900 and the mother’s at $10,000. The father had been paying the mother $250 per month until the January 2021 Stay of Enforcement, but claims an income limiting injury that predates the Divorce Judgment by about eight months. [ 13 ] The mother deposes that she is a full-time student for the foreseeable future and is therefore accordingly not employed, but her Cunningham disclosure is lacking with respect to her company.

The father seeks her income to be imputed based on Alberta’s minimum wage at $31,200 per year, and child support adjusted accordingly, both ongoing and retroactively to November 2019, when the parties separated. [ 14 ] My conclusion is that there cannot be an imputation of annual Guideline income at $31,200 for the mother in the present circumstances as Hunt applies in this case, subject to the Cunningham disclosure as to the mother’s corporate interest concerning her financial disclosure.

There are also the allegations on both sides as to the other side’s surreptitious employment and other cash income, which cannot be verified or refuted in the context of this hearing. [ 15 ] The most reliable outcome in this case is simply to order that no further ongoing child support will be paid by the father to the mother, but no retroactive credit will be given to the father, either, for his previous $250 per month payments. Following further and full disclosure by the parties, this matter can be revisited. There will be no costs awarded to either party. Heard on the 12 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: Lorraine M. Snyder for the Defendant/Applicant Michael Aytenfisu for the Plaintiff/Respondent