Glowacki v Darmanin, 2021 ABQB 882

Court of Queen’s Bench of Alberta Citation: Glowacki v Darmanin, 2021 ABQB 882 Date: 20211105 Docket: FL03 61515 Registry: Edmonton Between: Kamila Glowacki Applicant - and - Alexander Michael Darmanin Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A.

Introduction [ 1 ] This is my ruling on a desk application for child support in a “material non-disclosure by payor” setting. [ 2 ] The mother is entitled to retroactive support for the children, from the date of separation, gauged on the father’s pre- disclosure income, as discussed further below. B. Analysis [ 3 ] I have completed my review of the various materials filed by both parties. [ 4 ] I accept that the state of Mr. Darmanin's disclosure is as described by Mr.

Wood in his September 30th letter. [ 5 ] Given that state of (materially deficient) disclosure, we are in pre-disclosure territory i.e. it is open to me to set Mr.

Darmanin's income on an interim basis, inferring his income from the available evidence. On this aspect, see Li v Wong , 2010 ABCA 296 : The parties conceded that this was only an interim order. The appellant’s [support payor's] actual income would likely be subject to further proceedings supported by further financial disclosure : F000005/30-36; F000019/9-22. The chambers judge provisionally imputed the appellant’s income at $225,000.00 per annum. He suggested that, on the material before him, imputing income at $225,000.00 on a “pre-disclosure, without prejudice basis” was “conservative”: A.R.D. F000036/24- 31.

The appellant argues that the chambers judge erred in doing so. There is no doubt that the chambers judge had a discretionary power to impute income, if appropriate in the circumstances . … … As the parties themselves conceded, further proceedings addressing further financial disclosure, notably the financial records of Dick & Sons, are on the horizon, the results of which may support a change in the amount provisionally set by the chambers judge in either direction.

The chambers judge made provisional pre-disclosure orders not only estimating the income of the payor spouse , but the means, needs and circumstances of the payee spouse.

It may not be ideal to make such important decisions by inference from records, but a party who is not forthcoming with direct information takes the risk that circumstantial evidence will be invoked against that party . ... [paras 6-10] [emphasis added] [ 6 ] See also the review of this and other "setting pre-disclosure income" cases in Heuft v Bramwell , 2021 ABQB 642 (paras 64- 69 ). [ 7 ] The parties have been separated since October 2019. [ 8 ] The father has not paid any child support since then. [ 9 ] I accept the mother's (uncontradicted) evidence of her income in 2019 and 2020 (per para 4 of her May 16, 2021 affidavit). [ 10 ] As for the father's post-separation income, he advised (per his May 5, 2020 affidavit) that "I am on AISH and also work some odd jobs ..." and (per his June 30, 2020 affidavit) that "I normally do paint job[s] as a subcontractor, and also work for skip-the-dishes and delivery for liquor companies.

As such, I would be working either from 7AM - 3 PM (painting) or have shifts from 3 PM to 11 PM (delivery)." [ 11 ] The only other windows into his post-separation income (i.e. opened by him) are his 2019 notice of assessment from CRA (showing "line 15000" (total income) of $11,006) and direct-deposit slips showing receipts of AISH benefits ($1,685 monthly) as late as December 1, 2020 (receipts dated July 31 and December 1, 2020). [ 12 ] A detailed inventory of the mother's efforts to seek broadband disclosure from the father, as well as the father's disclosure shortfalls, is provided (as noted) in Mr.

Wood's letter. [ 13 ] The mother provided the following information bearing on the father's income (per her affidavit): ... [The father] ... disclosed ... one set of bank account statements for a TD account ... from June 24 to November 30, 2020, which he apparently opened on June 24, 2020. I do not know what other bank accounts, or other financial assets, [the father] has now. ... [The father's] [bank] statements show that, between late June and late November 2020, he regularly received funds from sources other than AISH, totalling $11,250.00 .

Over the course of an entire year, this averages out to approximately $2,244.00 per month in additional, unexplained funds received by [him]. ... My counsel ... raised the issue of these unexplained deposits in a letter to [his] counsel, dated March 9, 2021. ... [he] has provided no explanation for these various deposits. Their source is not readily apparent on [his] bank account statements. When these deposits are considered alongside his presumed 2020 AISH income of $1,685 per month, [his] gross monthly income becomes $3,929.00 ..., or $47,148.00 annually .

My counsel ... prepared Childview calculations showing what [his]

section 3 and

section child support obligations would be, based on my annual income being $25,620.00 and [his] annual income being $47,148.00 ... [ 14 ] The father is apparently currently incarcerated in British Columbia and has been since early May 2, 2021. [ 15 ] The father's counsel provided (limited) information about that incarceration: On July 15, 2021, [our office] received a phone call from a person professed to be [the father]; he advised me that he has been in Okanagan Correctional Centre since may 2, 2021.

He did not tell me when he would be released from the prison. [affidavit of staff person at father's counsel's office] ... I do not have any new information [as of August 10, 2021]. ... it seems that the father was still in jail [per a "recent" mother-father conversation] ... To my knowledge, this incarceration in BC is for new charges laid in May 2021 (perhaps bail was denied to do his probation conditions and the charges in [Alberta]). He advised that his criminal proceeding in Alberta has not been concluded yet. [last two paragraphs are from father's counsel's August 10, 2021 email] ...

I personally spoke with Mr. Darmanin on August 12, 2021 over the phone, and he advised that he was still incarcerated. He did not

now when he would be released. He further advised that AISH payments were stopped because someone advised AISH that he moved out of Alberta. He didn't know if he is still receiving payments from AISH. As he is incarcerated, he doesn't have access to his bank account. [father's counsel's August 13, 2021 email] ... [the father] called my office [on October 4, 2021] .... He confirmed that he was still held in custody in BC and he had no information as to when he could be released.

I have no other way to substantiate his claim other than the above. [father's counsel's October 5, 2021 letter] [ 16 ] The father's current status is opaque: • no third-party information (documentary or otherwise) confirms that the father continues to be in custody; • if he is, the reason(

s) have not been provided; • no information has been provided on his release possibilities (if any) or his efforts (if any) to pursue one or more of those possibilities; • if his AISH payments have indeed been stopped, nothing tells us when; and • given the father's overall deficient disclosure, I cannot tell if any other income(

s) he has are continuing to flow. C. Conclusion [ 17 ] In all these circumstances, and particularly emphasizing the father's deficient disclosure, it is appropriate to impute income to him, on an interim pre-disclosure basis, as proposed by the mother, with her Childview calculations accepted and found be me to be applicable from the date of separation, with retroactive support due (as calculated by the mother) from that date. [ 18 ] On the

section 7 front, I accept the mother's evidence of the current expenses (per para 10 of her affidavit) and her proposed burden-sharing ratio (i.e. accepting her evidence of her income and (as noted) imputing the proposed income to the father). [ 19 ] On the father's recent request (per his counsel's October 5 letter) for video-calls with the children, I would ask counsel to make the arrangements together.

If counsel are unable to agree by November 12, I invite their respective position and proposal, via email to my assistant (Stacy Adams), by November 19th. [ 20 ] The mother is entitled to Schedule-C-level costs for her steps to obtain disclosure, attend Family Docket Court, and pursue this support application (to the extent not already addressed). [ 21 ] If counsel require clarification on any aspect, they can contact me via Ms. Adams. [ 22 ] I would ask Mr. Wood to prepare an order reflecting these directions. Application submitted via the desk-application process June 28, 2021.

Dated at Edmonton, Alberta this 5 th day of November, 2021. Justice M. J. Lema J.C.Q.B.A. Appearances: Andrew S. Wood Rand & Company Barristers & Solicitors for the Applicant Monica Wang Duke Law Office Barristers, Solicitors & Notary Public

for the Respondent