Wold v Rosychuk, 2021 ABQB 898

Court of Queen’s Bench of Alberta Citation: Wold v Rosychuk, 2021 ABQB 898 Date: 20211110 Docket: 4803 159572 Registry: Edmonton Between: Liza Jane Wold Applicant - and - Jarrett Lee Rosychuk Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] There are cross applications for determination of child support. [ 2 ] Mr. Rosychuk seeks an adjustment of child support payable by Ms. Wold effective January 1, 2020. [ 3 ] Ms.

Wold seeks an adjustment of child support payable by Mr. Rosychuk effective January 1, 2018. [ 4 ] That parties were married in 2000, had three children and were divorced in June 2012. The parenting arrangement ordered in the divorce judgment was equally shared week on/week off parenting. [ 5 ] As to child support, the divorce judgment, in its recitals, recorded that each party had an income of $100,000 per year.

The divorce judgment provided: “Based on the parties’ current Guideline incomes, no child support is payable by either party to other.” (para. 11) [ 6 ] It appears that there have been two “changes in circumstances” which may justify adjustments to the child support obligations.

[ 7 ] First, the parenting arrangements have changed. The parties’ eldest child is over 18 and no longer a “child of marriage”. Since about June 1, 2020 the parties’ “middle child” has lived with Mr. Rosychuk. The parties’ youngest child continues to live one week with Mr. Rosychuk and the next week with Ms. Wold. [ 8 ] Second, the parties’ incomes have changed. Both of them continue to earn substantial incomes. They do not, however, agree as to how much each makes. Ms. Wold alleges that Mr.

Rosychuk’s income has for some time been more than hers and that accordingly his child support obligation is greater than hers. She claims the adjustment should be effective January 1, 2018. [ 9 ] There is no dispute, as I understand it, that the fact that one child now lives exclusively with Mr. Rosychuk justifies a recalculation of each party’s child support obligation. Ms. Wold’s child support obligation for the “middle” child would be the Guideline amount for one child determined by her income. Each parent would continue to have a child support obligation for the youngest child.

The amount would be the Guideline amount for one child determined by the parties’ respective incomes. The resulting calculated child support obligations would be off-set against each other and one party or the other would be obligated to pay the offset amount. [ 10 ] In my view, the only real issues between the parties are as to their respective incomes and the effective date of any necessary adjustment. [ 11 ] In the divorce judgment, the Court ordered that the parties employ a certain process for the determination of these issues. The relevant provisions of the divorce judgment provide: 16.

Notwithstanding paragraph 23 of this Divorce Judgment and Corollary Relief Order, the parties have agreed that by August 31 st of each year, the husband and wife will exchange the previous year’s tax returns, Notices of Assessment and the financial statements for any corporate interests in which each party owns a 1% or more interest. 17. After the exchange of financial information, the parties will review the same to determine if they wish to adjust the child support on a retroactive or ongoing basis. 18.

After each party has had an opportunity to review the other party’s financial information, if there is an issue to be resolved in determining each party’s Guideline income, the husband and wife shall jointly retain and meet with a mutually agreed upon accountant to review and try to resolve the income determination and child support. 19. A retroactive adjustment for child support would be back to January 1 st of the year for which the information is provided. An ongoing adjustment would commence on September 1 st of the year the parties are in.

The parties agree that any retroactive adjustment for child support shall be paid by the end of the calendar year. 20. As the husband’s corporation has a year-end of May 31 st , the corporate pre-tax income will be prorated to include 7/12 of the previous year’s pre-tax income from the corporation and 5/12 of the corporation’s pre-tax income for the current year to calculate income based on a calendar year. 21. The accountant is to be a neutral third party and will be provided with the child support sections of the Minutes of Settlement between the parties.

The husband and the wife will follow the suggestions of the accountant and provide any documentation as to what the accountant needs for determining the Guideline income of both husband and wife. 22. There shall be no claims by either party for any retroactive amounts of child support up to and including December 1 st , 2011. 23.

Each party shall provide the other with a complete copy of his or her income tax return and any notices of assessment and reassessment issued to him or her by the Canada Customs and Revenue Agency on an annual basis, on or before June 30 th of each year, as long as there is a child of the marriage as defined in the Divorce Act (Canada) .

In the event that a party has not filed an income tax return for the previous year, he or she shall provide the other party with copies of his or her T4, T4As and all other relevant tax slips and statements disclosing any and all sources of income, including self-employment income. [ 12 ] These paragraphs of the divorce judgment impose the disclosure obligations and the dispute resolution mechanism described in these paragraphs on the parties.

They are obliged to follow the process set out in these paragraphs. [ 13 ] As I read it, the dispute resolution mechanism set out in the divorce judgment provides that the accountant retained mutually by the parties will determine the parties’ Guideline income. Paragraph 21 says, The husband and wife will follow the suggestion of the accountant and provide any documentation as to what the accountant needs for determining the Guideline income of both husband and wife. (emphasis added) [ 14 ] I acknowledge that my

interpretation of paragraph 21 has been made without the parties having made submissions as to the meaning of those words in the Divorce Judgment. Whether or not paragraph 21 means what I suggest does not affect the fact that they are bound to comply with it and the other divorce judgment provisions. [ 15 ] I am not certain whether there is a continuing dispute as to whether the disclosure required of each party has been made.

If there is, the proper application is for an order requiring such disclosure. [ 16 ] It is clear, however, that the parties have not followed the procedure imposed on them by what the Court ordered in paragraph 18 of the divorce judgment. They did not “jointly retain and meet with a mutually agreed upon accountant to review and try to resolve the income determination and child support.” [ 17 ] Mr. Rosychuk says that Ms. Wold refused to participate in the exercise ordered by paragraph 18. So, he retained an

accountant on his own and that accountant has provided a report upon which Mr. Rosychuk seeks to rely. Clearly the parties did not meet with a “neutral third party” accountant for the purpose of attempting to resolve the parties’ dispute. [ 18 ] If one or other of the parties has declined to comply with the requirements of the divorce judgment, in my view, the appropriate application is for an order compelling compliance.

It is not appropriate for the parties to seek court determination of the issue which the Court has already ordered be determined by another means. [ 19 ] Possibly, if the requirements of the divorce judgment have become entirely unworkable, an application to amend the divorce judgment would be appropriate. No such application has been made. [ 20 ] Both the application and the cross-application are dismissed. [ 21 ] Each party will bear their own costs. Heard on the 24 th day of September, 2021. Dated at the City of Edmonton, Alberta this 10 th day of November, 2021. B.R. Burrows J.C.Q.B.A. Appearances: T.

Huizinga for the Applicant K. Ketsa for the Respondent