Trafiak v Trafiak, 2021 ABQB 707

Court of Queen’s Bench of Alberta Citation: Trafiak v Trafiak, 2021 ABQB 707 Date: 20210910 Docket: 4803 188071 Registry: Edmonton Between: Natasha Rhoza Trafiak Plaintiff - and - Dallas Earl Trafiak Defendant Corrected judgment: A corrigendum was issued on September 10, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Supplemental Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ Parenting and Exclusive Possession

[ 1 ] This Supplemental Memorandum of Decision deals with matters arising from my initial decision now recorded at 2021 ABQB 600 . [ 2 ] When the Court first heard this matter on the 9 th of July 2021, counsel for the three remaining children of the marriage, ages approximately 13, 16 and 18 years of age, all indicated through their counsel that they wanted to primarily reside with the father.

The mother has reiterated that it has always been her intention to allow these teenage children to decided where they want to primarily reside. [ 3 ] Given this desire of all remaining children of the marriage who are young adults to reside primarily with their father, the Court directed that the father would have primary care of these three children.

It follows then from the Court’s decision to grant primary care of the three children of the marriage to the father, that he should also have exclusive possession of the former matrimonial home. [ 4 ] The father has been considering whether or not he is able to purchase the former matrimonial home at the appraised value, but in any event, he wishes to make repairs to the former matrimonial home to prepare it for sale.

The mother was prepared to vacate the former matrimonial home for the purposes of repairs in the July hearing, but has subsequently advised the Court that she has had a falling out with her counsel at that time, and now believes that such repairs will not be made by the father because he is either not qualified to make those repairs, or because he has not made any repairs to the former matrimonial home for several years.

In a somewhat contradictory note to the Court, also not contained in a sworn affidavit, the mother also now advises the Court that she is concerned that the father will not include her in the repairs being made to the property. [ 5 ] Irrespective of what repairs may or may not happen in the former matrimonial home, the father has been granted primary care of the children of the marriage, so it follows that he should have exclusive possession of the former matrimonial home.

If repairs are necessary to the former matrimonial home to maximize the value of that property, it would seem to the Court that it is in the best interests of both of the parties to maximize the value of the former matrimonial home before its sale, and certainly to make it as livable as possible for all its occupants until that time. [ 6 ] Although the mother has raised serious concerns with respect to the father’s behaviour with the children in the past, these concerns do not appear to worry Mr. Boudreau in his analysis of the situation as counsel for the children.

Additionally, the Court has already prohibited the father from consuming alcohol or illicit substances while caring for the children.

Financial Matters [ 7 ] As for unresolved financial issues between the parties, prior to ceasing to act for the mother, her former counsel advised the Court that financial disclosure from the father was still outstanding, and that this lack of financial disclosure from the father had been a long-standing problem. [ 8 ] In an effort to simplify matters to bring as much closure as possible to the financial issues, the Court is prepared to draw a negative inference with respect to the lack of financial disclosure regarding the father’s corporate income, as provided for by Cunningham v Seveny , 2017 ABCA 4 .

As such, the father’s entire corporate revenue, plus $14,000 in COVID19 relief payments received by the father, will be included his income for Guideline purposes.

The mother’s child support obligations will have to be calculated as against the father’s Guideline income, however before the determining the father’s Guideline income for the purposes of child support and spousal support, the father will need to provide his full financial disclosure, save and except for his Cunningham disclosure obligations. [ 9 ] In my previous decision in this matter, I suspended the payment of the Father’s $2000 a month non-characterized payments, and the suspension of monthly non-characterized payments will continue until further of this Court.

The Court now grants an unconditional stay of enforcement as against any arrears owing by the father to the mother given that all of the father’s corporate revenue, plus another $14,000 in COVID19 benefits received, has been deemed to be the father’s Guideline income. Accordingly, the father has no further Cunningham disclosure obligations. The mother is free, however, to advance her spousal support claim if she sees fits in these circumstances. [ 10 ] According to counsel for the mother, the parties agreed to a Consent Litigation Plan Order dated December 2, 2020, which needs to move forward.

Even though the father’s entire corporate income has been imputed to him, plus $14,000 in COVID19 income support he received, counsel for the father acknowledges that there are outstanding undertakings arising from Questioning, not the subject of this application. Counsel for the mother’s position was that there was also outstanding other financial disclosure in addition to the Cunningham disclosure obligations of the father, in which case the mother should proceed accordingly to enforce the father’s outstanding disclosure obligations if that is the case.

Conclusion [ 11 ] With the school year commencing shortly, the Court has awarded exclusive possession of the former matrimonial home to the father as of October 1, 2021, given that the father has been awarded primary care of all three teenaged children of the relationship. This will enable the children to remain in their residence and to continue to attend school within the community that the residence is located in.

The father has 60 days from the date of possession to either purchase the mother’s half interest in the home as is, or within 60 days he will repair the former matrimonial home and list it for sale at a mutually agreeable price to the mother. [ 12 ] There will be no further Cunningham v Seveny disclosure obligations on the father’s part as the Court has now set his Guideline income, which can be set off as against the mother’s child support obligations.

The Court’s July Decision which referenced the 60 day stay of enforcement on the arrears for support subject to the Cunningham disclosure being provided within 60 days has now been satisfied by this Ruling currently, so the stay of enforcement on the arrears will henceforth be unconditional. The father is also relieved of the obligation to continue paying $2000 per month in uncharacterized support monthly, subject to any further order of the Court. It is

also subject to the father’s spousal support obligation pursuant to any application the mother makes for spousal support in the future. [ 13 ] On the subject of costs, the Court declines to award any costs to either party for the contested Special Chambers Application of July 9, 2021. Heard on the 27 th day of August, 2021. Dated at the City of Edmonton, Alberta this 3 rd day of September, 2021. Donald Lee J.C.Q.B.A. Appearances: Justine Fallu Trilogy Family Law for the Plaintiff Billal A.

Saleem Forum Law LLP for the Defendant Jack Boudreau Angeles Law For the Children _______________________________________________________ Corrigendum of the Supplemental Memorandum of Decision of The Honourable Mr. Justice _______________________________________________________ The changes are in para 11: With the school year commencing shortly, the Court has awarded exclusive possession of the former matrimonial home to the father as of October 1, 2021 , given that the father has been awarded primary care of all three teenaged children of the relationship.

This will enable the children to remain in their residence and to continue to attend school within the community that the residence is located in. The father has 60 days from the date of possession to either purchase the mother’s half interest in the home as is, or within 60 days he will repair the former matrimonial home and list it for sale at a mutually agreeable price to the mother.