Moen v Ropchan, 2021 ABQB 777

Court of Queen’s Bench of Alberta Citation: Moen v Ropchan, 2021 ABQB 777 Date: 20210927 Docket: FL03 29837 Registry: Edmonton Between: Kelly Moen Applicant - and - Nikki Ropchan Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] A child-support payor applies to retroactively reduce support payments, cancel any remaining arrears, and reduce ongoing support to zero. [ 2 ] The recipient opposes all round.

[ 3 ] No retroactive adjustments are warranted, at least for periods up to February 2021. Arrears are not cancelled. The scale of ongoing support requires further submissions on eve-of-application disclosure by the payor. B. Analysis Retroactive adjustments for periods before May 17, 2019 [ 4 ] On the issue of whether any income-change-related adjustments can be made now to any child support payable for periods preceding Dunlop J.'s order on May 17, 2019, the answer is no . Per that order, Justice Dunlop effectively closed the door to any further such adjustments before that date.

As I understand it, no appeal of that order was filed, and no application to extend the time to appeal is in gear. [ 5 ] As for paragraph 6 of his order (“Either party has leave to re-apply to vary this order without showing a change of circumstances providing the party applying has made full disclosure before bringing an application”), I accept Ms. Klemen's argument that, given the other terms of the order, it was obviously not intended to allow Mr. Moen to take a second run at challenging support payable for pre-order periods based on him having earned less than the income level(

s) at which support had earlier been ordered. [ 6 ] Whatever evidence Mr. Moen had bearing on potential income-change-related adjustments to pre-order periods was either brought by him to Dunlop J. or should have been. [ 7 ] The obvious focus of paragraph 6 is "forward-looking matters" e.g. the starting-June-1st-2019 support of $1,335 monthly. [ 8 ] Mr. Moen's present attempt to revisit child support up to May 17, 2019, based on his actual income in earlier years, is accordingly barred by Dunlop J.'s order. Retroactive adjustments for May 17, 2019 to January 2020 [ 9 ] As for whether Mr.

Moen's January 2020 application to revisit child support fares any better for periods after May 17, 2019 i.e. the eight or so months after Dunlop J.'s order and before that application , I find that, per the Supreme Court of Canada's decision in Colucci v Colucci , 2021 SCC 24 , Mr. Moen did not provide any "effective notice" before the filing of that application i.e. give Ms. Ropchan any particular "heads up" that, during that period (May 2019 to January 2020) his actual income was less than the $92,500 set by Dunlop J. [ 10 ] Instead, the first notice (effective or formal) that Ms.

Ropchan received was via the application itself. [ 11 ] As explained in Colucci and as elaborated in DM v SP , 2021 ABQB 738 (see the Colucci excerpts on "Effective Notice" in the latter decision, as well as paras 46-65), the support recipient's "certainty" interest trumps the payor's "flexibility" interest. [ 12 ] No evidence here points to any particular inability of Mr. Moen to provide earlier notice of his actual income i.e. at any point between May 2019 and January 2020. [ 13 ] Accordingly, applying Colucci here, it is not open to me to adjust support for any portion of May 2019 to January 2020.

With no earlier-than-January-2020 notice of any reduction(

s) to Mr. Moen's income during that period, and no explanation for the lack of earlier notice, the earliest possible date for income-change-related adjustments is January 2020. Retroactive adjustments as of January 2020 [ 14 ] As for income-change-related adjustments to support after January 2020, the question becomes whether Mr. Moen provided full disclosure of his then income at that point. [ 15 ] Again, as discussed in Colucci and also in DM , entitlement to retroactive adjustments requires full disclosure. [ 16 ] I am not satisfied that Mr.

Moen made full disclosure of his as-of-January 2020 income even at that point . [ 17 ] As far as I can tell, the only information provided by him around that time, and bearing on his income around that time, was his statement, in his December 12, 2019 affidavit (filed January 22, 2020) that "I am currently employed with Hibco Construction.

I anticipate that my 2019 income will be approximately $70,000." [ 18 ] Beyond providing no evidence in support of that assertion (e.g. pay stubs from Hibco), he provided no evidence of his income circa January 2020 i.e. going forward. [ 19 ] It is one thing to refer to an estimate of income for 2019 (i.e. the asserted $70,000); it is another thing to explain how that figure might bear on his anticipated 2020 income. For example, Mr. Moen did not describe how long he had been employed by Hibco i.e. to help understand the $70,000 assertion in context. Were those his earnings with that company for the entire year?

For half the year? For some other period? [ 20 ] He effectively cast no light on his "circa January 2020" income by the mere reference to $70,000 earned in 2019. [ 21 ] His income-related disclosure around that time did not improve even factoring in his December 12, 2019 Disclosure Statement , which 2019-wise, includes only three pay stubs (covering Oct 13 to Nov 23, 2019), from "FGS (Edmonton) Inc.", with no reference at all to earnings from Hibco, and also not explaining his period of employment with FGS i.e. with no additional evidence to

help the reader understand, from those three pay stubs, what his 2019 income had been and whether that might illuminate his 2020 income. [ 22 ] Same even when considering his Disclosure Statement filed February 24, 2021 , which (2019-income-wise) includes three T4 statements (none from Hibco) and nothing about his 2019 tax return or assessment. [ 23 ] As for casting a light on his 2020 income, that statement included only three pay stubs (mid-September to mid-October 2020) from a certain employer i.e. an obviously incomplete picture of his earnings for that year, with no evidence of his employment being limited to a handful of weeks that fal). [ 24 ] All told, Ms.

Ropchan was left in the dark by these limited and inconsistent disclosures, about Mr. Moen's income circa January 2020. [ 25 ] Per Colucci , a support payer cannot expect to receive adjustments to support, based on actual income being less than set-by- earlier-order income, without providing accurate and complete income information. Otherwise, the recipient is entitled to assume that "all is well" on the payor's income front.

And, as explained earlier, the payor has no one to blame but himself where after-the-fact adjustments are rejected, when he offers no explanation for the disclosure shortfall. [ 26 ] Accordingly, again per Colucci , I am not able to adjust child support payable for any point until (at minimum) February 24, 2021 . Retroactive adjustments starting February 2021 [ 27 ] That is when Mr. Moen applied again to vary support retroactively. [ 28 ] Via his February 24, 2021 affidavit, Mr. Moen provided T4 information from various employers for both 2019 and 2020.

However, he did not provide his tax return for 2019 or any notice of assessment for that year, and his return would have been due by (or around) April 30, 2019, with assessment normally occurring within one or two months after filing. [ 29 ] Plus, he offered no (acceptable) explanation for having not filed his 2019 tax return by the due date or even by February 24, 2021, or if he did, for not providing a copy with his disclosure at that time. [ 30 ] To the extent he argued that he was not able to pay for his taxes to be prepared, that is not a reasonable explanation, especially with his earnings at that time apparently derived exclusively from employment, since preparing an employment-earnings-only tax return is a simple matter. [ 31 ] I find that the disclosure-shortfall pattern continued even at this stage, by non-inclusion, in February 2021, of tax- return-and-assessment information for 2019 . [ 32 ] I recognize that, as of February 2021, Mr.

Moen's tax return for 2020 was not yet due and, by definition, no notice of assessment would have been available then. [ 33 ] For 2020, and per his February 2021 disclosure, he provided three T4 slips from three employers and a T4A slip from the Government of Canada. [ 34 ] Without (later) disclosure of his 2020 tax return (due in late April 2021) and the associated assessment (at minimum), I cannot tell whether that disclosure was adequate. Whether Mr. Moen’s August 2021 disclosure accurate and complete [ 35 ] On the latter aspect, Ms. Klemen noted at the application (August 5, 2021) that Mr.

Moen had provided approximately 700 pages of additional (unfiled) disclosure shortly before the application. [ 36 ] It may be that that disclosure included information bearing on his 2020 income , including his tax return and assessment. [ 37 ] I would ask Ms. Klemen, by October 8, 2021 , to provide copies of Mr. Moen’s 2020 tax return and assessment (if part of the August 2021 disclosure) and (in any case) to provide her position on whether Mr.

Moen’s eve-of-application disclosure represents a full and accurate picture of his 2020 and 2021-so-far income and, if not, the perceived shortfalls. [ 38 ] Once I receive her comments, I will invite further comments that Mr. Moen may have on the sufficiency of his disclosure relating to his 2020 and 2021-so-far income. (I will set his response deadline once I complete my review of Ms.

Klemen's comments.) [ 39 ] Once I have those combined comments, I will be able to gauge whether the circa-February-2021 disclosure was accurate and complete (and same for the August 2021 disclosure) and, in any case, decide whether child support from February 2021 (or alternately August 2021) forward should be adjusted to square with Mr. Moen’s actual income (to the extent it is less than the $92,500 set by Dunlop J. in May 2019).

Summary on retroactive-adjustment requests [ 40 ] All to say: Mr. Moen's application to vary child support for any period preceding February 24, 2021 is dismissed, with the outcome of his application for any periods after that point to be decided once I receive the information and related submissions requested in the preceding section.

Request to cancel arrears [ 41 ] As for Mr. Moen's application to cancel his existing child support arrears , it too is dismissed, in light of the test outlined in Colucci (para 138 ): Accordingly, in this third category of cases [requests to cancel arrears], the payor must overcome a presumption against rescinding any part of the arrears. The presumption will only be rebutted where the payor parent establishes on a balance of probabilities that — even with a flexible payment plan — they cannot and will not ever be able to pay the arrears (Earle, at para. 26; Corcios , at para. 55; Gray, at para. 58).

Present inability to pay does not, in itself, foreclose the prospect of future ability to pay , although it may justify a temporary suspension of arrears (Haisman, at para. 26). This presumption ensures rescission [i.e. cancellation] is a last resort available only where suspension or other creative payment options are inadequate to address the prejudice to the payor. It also encourages payors to keep up with their support obligations rather than allowing arrears to accumulate in the hopes that the courts will grant relief if the amount becomes sufficiently large.

Arrears are a “valid debt that must be paid, similar to any other financial obligation”, regardless of whether the quantum is significant (Bakht et al., at p. 550). [ 42 ] Even assuming present financial difficulties, Mr. Moen offered no evidence to suggest that he will not ever be able to clear the arrears or make significant inroads on them. [ 43 ] Accordingly, the cancel-arrears hurdle is not cleared. Request to stay (or resume a stay) of enforcement of arrears [ 44 ] As for any application by Mr.

Moen to stay, or resume a stay, of enforcement of his arrears , I cannot decide that issue without first determining whether he has made sufficient disclosure of his current income, which awaits review of the noted follow-up materials and submissions discussed above. Support recipient’s section-7-expense claim [ 45 ] Concerning Ms. Ropchan's section-7-related expenses , I defer further consideration of that request pending a further submission from Ms.

Klemen (via 2-page-letter maximum, October 8 deadline) addressing whether those requests square with any applicable Alberta or federal law bearing on the timing of sec-7-expense submissions i.e. whether it becomes too late at some point to submit requests for such claims. [ 46 ] Mr. Moen will have until October 15, 2021 to provide any response (same format, same page limit). C. Closing note [ 47 ] I would ask Ms. Klemen to prepare an order reflecting these reasons (Rule 9.4(2)(

c) not to apply). [ 48 ] As for costs, I invite any submissions Ms. Klemen may have (October 8, 2021 deadline), on which (if any are offered) I will invite Mr. Moen's position (October 15, 2021 deadline). Heard on the 5 th day of August, 2021. Dated at Edmonton, Alberta this 23 rd day of September, 2021. M. J. Lema J.C.Q.B.A. Appearances: Dylan S. Morrison Morrison Family Law for the Applicant support payor

Danielle Klemen Legal Aid of Alberta for the Respondent support recipient