Moen v Ropchan, 2021 ABQB 923

Court of Queen’s Bench of Alberta Citation: Moen v Ropchan, 2021 ABQB 923 Date: 20211117 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 ] This is a follow-up to my decision in Moen v Ropchan , 2021 ABQB 777 . [ 2 ] I invited the parties to provide further submissions on the adequacy of Mr.

Moen's income disclosure for 2020 onwards, his income for child-support purposes from February 21, 2021 onwards, the timeliness of certain retroactive section-7-expense claims, and costs. [ 3 ] The parties' submissions and my conclusions on each aspect are outlined below.

B. Analysis Outstanding issues [ 4 ] Here are paras 35-40 and 44-48 of the noted decision, which outline the remaining issues: Whether Mr. Moen’s August 2021 disclosure accurate and complete 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. It may be that that disclosure included information bearing on his 2020 income , including his tax return and assessment. 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. 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.) 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 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. [paras 35-40] Request to stay (or resume a stay) of enforcement of arrears 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 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. Mr. Moen will have until October 15, 2021 to provide any response (same format, same page limit). [paras 35-40 and 44-46] [emphasis in original] Pre-February-24-2021 periods no longer in issue [ 5 ] As reflected in paras 35-40, the focus of the follow-up submissions was expressly limited to whether Mr.

Moen's disclosure of his 2020 and 2021 (year to date) income was accurate and complete. In turn, that disclosure (accurate and complete, or otherwise) was required strictly to set the appropriate child support payable by him as of February 24, 2021 (when he filed his change-child-support application) onwards. [ 6 ] By inviting the referenced follow-up submissions, I did not open the door to any revisiting of Mr. Moen's income or the associated child support for any period before February 24, 2021. [ 7 ] If Mr.

Moen believes that my decision was off-target in any aspect concerning pre-February 24, 2021 periods, his remedy is to appeal my decision (if it is still timely to do so). [ 8 ] Accordingly, I do not see any of the information submitted about Mr. Moen's income before that date (or any of the associated arguments) as relevant on any of the follow-up questions. Disclosure of Mr. Moen’s 2020 and 2021 (year to date) income [ 9 ] Per his February 24, 2021 affidavit, Mr. Moen deposed (para 12) that " ... I had sporadic employment throughout 2020.

I estimate that I made a total of $55,923 in 2020, which includes my CERB [Canada Emergency Response Benefit] income." [ 10 ] In his Disclosure Statement filed the same date, he included pay stubs from one employer for pay periods ending September 18, October 2, and October 16, 2020 (the last one reflecting year-to-date gross earnings of $9,349.53).

[ 11 ] I recognize that, at that stage, Mr. Moen may not have had all (or even any) of his 2020 T4 or other information slips in hand. [ 12 ] In disclosure materials filed on July 22, 2021 (i.e. shortly before the August 5, 2021 application), Mr. Moen included both his 2020 tax return (T1) and his notice of assessment, the latter accepting his income as filed, namely, total income of $66,403, consisting of employment income of $45,257 and government-paid income support of approximately $21,000. [ 13 ] In other words, as it turned out Mr.

Moen's 2020 income was about $10,000 higher than he had estimated in late February 2021. [ 14 ] However, compared to the prevailing baseline income (set by Dunlop J. in his May 17, 2019 order), namely $92,500, Mr. Moen's income was down by approximately $26,000. [ 15 ] Again, noting the current objective of setting Mr. Moen's income for child-support purposes for February 24, 2021 onwards, I accept Mr. Moen's 2020 income as reported and assessed as one indicator. [ 16 ] However, Mr.

Moen made additional disclosures, of his early-in-2021 income and of his loss of employment in March 2021, which also bear on his for-child-support-purposes income as of late February 2021. [ 17 ] In his February 24, 2021 affidavit, he deposed (para 13) that "I have begun new employment this [2021] year. I have attached as Exhibit "G" my most recent pay stub.

I expect to make approximately $45,000 this year." (Exhibit "G" is actually three pay stubs, the last for a pay period ending February 11, 2021, which reflected year-to-date gross earnings of $4,862 to that point, which would equate to an annual income of approximately $42,000.) [ 18 ] In his July 22, 2021 disclosure statement, he swore that "I expect my gross annual income in this [2021] calendar year to be $25,000. Currently I earn income from "none" [in the blank above "State source of income"].” [ 19 ] In his November 8, 2021 supplemental affidavit, Mr.

Moen swore that he "was laid off from [his last employer] due to a shortage of work on March 15, 2021" and that "since [that date], I have ... been unemployed and have had difficulties finding work due to a surge in increased job applicants, due to the Covid-19 pandemic and our unemployment rate being at an all-time [high]." [ 20 ] He then described receiving CERB benefits of $900 biweekly between mid-March 2021 to mid-July 2021, the same benefits (albeit reduced to $540 biweekly) from then until October 25, 2021, and no further such benefits after that, with his family's income currently limited to child-fostering payments (for one child in his family's care), his wife's "learner income support" ($1,185 monthly), and the Child Tax Benefit ($319.33 monthly) received for a child recently born to Mr.

Moen and his wife. [ 21 ] Assuming Mr. Moen earned the same level of employment income throughout January 1 to March 15, he would have grossed approximately $8,100. For the next six months, he apparently received approximately $7,200 in CERB benefits, followed by another approximately $3,250 from mid-July until late October i.e. a total of approximately $19,000 for 2021 to that point. Conclusion on Mr. Moen's income for 2021 (February 24 to November 8) [ 22 ] In all the circumstances, I accept that Mr.

Moen provided timely (as of February 2021) disclosure of his income declining (or likely declining) to $45,000 i.e. that $92,500 was no longer an applicable benchmark and also that his $66,000 income in 2020 was not an accurate proxy for his 2021 income. [ 23 ] On the other hand, I find that he did not provide a timely update of the noted further shrinkage in his income (i.e. from the $45,000 level), starting in mid-March, until his July 22 disclosure (forecasting income of $25,000 for 2021). [ 24 ] Here I apply the same Colucci analysis as in the first judgment, again emphasizing after-the-fact (versus "as you go") disclosure of income reductions with no reasonable explanation for the delay. [ 25 ] I find that he made timely disclosure of the effective evaporation of his income, starting in late October, via his November 8 affidavit. [ 26 ] Ms.

Ropchan argued that Mr. Moen’s income as reported above should not be accepted at face value and that income should be imputed to him. [ 27 ] However, Ms. Ropchan did not provide any material evidence to displace or cast any shadow over Mr. Moen’s reported income between late February and early November 2021. (Here I apply the same general analysis as that addressing his ongoing income – see below.) [ 28 ] Accordingly, I set Mr. Moen's income, for child-support purposes, at $45,000 for the period from February 24 through to July 22 and at $25,000 for the period from July 22 to November 8. Mr.

Moen's income as of November 8, 2021 [ 29 ] For November 8, 2021 onwards, I accept Mr. Moen's evidence of being unemployed, of sufficiently diligent efforts to obtain employment (per the “jobs applied for” information in Exhibit Q of his November 9, 2021 affidavit), of effectively having no income at present, and of presently surviving on his wife's (very limited) income, the Child Tax Benefit for their child, and contributions from various family members. [ 30 ] Here I reject Ms. Ropchan's evidence, based purely on a Linked-In profile, that Mr.

Moen "has been a general contractor for 25 years and is still operating .” She provided no evidence to refute his position (“stale-dated”) on that profile.

[ 31 ] As well, she presented no evidence to contradict any of Mr. Moen's evidence of his current unemployment and job search efforts or to provide any basis for imputation of income under Hunt v Smolis-Hunt , 2001 ABCA 229 , which requires "proof of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the [support payor] is to undermine or avoid his or her support obligations". [ 32 ] I note that the Alberta Court of Appeal gave leave in Peters v Atchooay , 2021 ABCA 237 for Hunt v Smolis-Hunt to be reconsidered.

As of now (and perhaps indefinitely), Hun t continues to govern income imputation in Alberta. [ 33 ] The present case is analogous to Antonakis v Totten , 2009 ABQB 671 , where Moreau J. (as she then was) concluded: Ongoing child support should be reserved based on the Plaintiff’s guideline income currently being nil having regard to his unemployment since February 2009 (save for a very recent web project). S.19(1)(

a) of the Child Support Guidelines requires proof of a specific intention to undermine or avoid support payments or proof of circumstances which permit the court to infer that the payor’s intention is to undermine or avoid his or her support obligations: see Hunt v. Smolis-Hunt 2001 ABCA 229 , at para. 42 .

I do not find on the evidence that the Plaintiff acquired and maintained his unemployed status over the past several months to avoid his child support obligations . ... [para 80] [emphasis added] [ 34 ] For other examples of unemployment accepted as a reason for no support payable, see Lorenson v Lorenson , 2021 ABQB 273 (Leonard J.) (paras 29-36 ) and Schmidt v Christie , 2021 ABQB 123 (my decision) (paras 48-55 ). [ 35 ] The present case does not feature: • an “acknowledgment that [the support payor] had not looked for a job [in years]”, as in Tarapaski v Tarapaski , 2009 ABCA 365 (para 7 ); • a “failure to explain periods of employment”, one of the pro-imputing-income factors in Comtois-Theriault v Theriault , 2010 ABCA 178 (para 20 ); • an unexplained failure to regain a driver’s license (key to earning income), as in Keating v Keating , 2017 ABCA 428 (para 13 ); • an apparently voluntary departure from employment, as in Ghebremeskel v Tesfu , 2021 ABQB 341 (Sullivan J.) (para 228 ); or • “minimal evidence regarding efforts ... made to find employment” and “no concrete evidence of any efforts to search for employment, as in Sherbo v Sherbo , 2021 ABQB 76 (Gates J.) (para 27 ). [ 36 ] Finally, on this aspect, I draw support from Blanchard v Blanchard , 2019 ABCA 53 , where the Court of Appeal endorsed a chambers decision rejecting a theory of intentional unemployment (emphasizing its effect on the support payor’s new family): Additionally, the chambers judge was entitled to accept the [support payor’s] evidence that he lost his employment due to a downturn in the oil industry and that, . . . while there is sparse evidence regarding the steps Mr.

Blanchard actually took to find further employment, it is reasonable to infer that he would have continued to work as an electrician if that work was available as deliberate underemployment by Mr. Blanchard would have a negative impact not only on the child support payable to Ms. Blanchard, but also on the standard of living of Mr. Blanchard’s new family for which he is apparently the sole income earner . [para 41] [emphasis added] [ 37 ] All to say: I find no evidence to suggest that Mr.

Moen’s current unemployment is stage-managed or otherwise aimed at stymying child-support payments. [ 38 ] For the time being, his income for child-support purposes is effectively nil. Stay of enforcement of existing arrears (including support for February 24 to November 8) [ 39 ] Given Mr.

Moen's present unemployment and general lack of means (as outlined in his February 24 affidavit and disclosure, July 22 disclosure, and November 8 affidavit), I direct a continued (or renewed) stay of enforcement of the existing arrears and a suspension of any ongoing child support, pending an agreement between the parties or a court order lifting the stay or suspension (or both). [ 40 ] I direct that Mr. Moen notify Ms.

Moen (via email, with a copy to MEP), within 10 days, of any changes to his employment or income of any character. [ 41 ] I also direct the continuation of paragraph 8 of Dunlop J.'s order (requiring the annual exchange of income tax returns and assessments). No change to arrears outcome in first decision [ 42 ] Mr. Moen devoted much of his follow-up materials to re-arguing the arrears issue. [ 43 ] Per the first judgment, I have already determined that no arrears should be cancelled. And Mr.

Moen did not bring any fresh application for the cancellation of arrears arising (per this judgment) after February 24, 2021.

[ 44 ] As with the pre-February 24, 2021 dimensions, if Mr. Moen believes that my arrears decision was off-target, he can appeal my decision (if it is still timely to do so).

Section 7 aspects [ 45 ] As noted in the reproduced excerpts from the first judgment, I invited further submissions on one dimension of Ms. Ropchan's section-7-related claim, namely, whether her request for reimbursement squared with any applicable law on the timing of

section 7 claims: see, for example, the review of retroactive-section-7-expense claims (including timing rules) in Hatt v Heathe r , 2021 ABQB 878 (paras 25-39 and 50-59 ). [ 46 ] Mr. Moen made various submissions on the section-7 front, but he did not argue that it was too late for Ms. Ropchan to claim any of the asserted expenses in the sense discussed in Hatt v Heather . [ 47 ] Accordingly, I find that Ms. Ropchan does not face any particular "time bar" on her existing s. 7 expense claims. [ 48 ] However, that is not the end of the s. 7 debate. [ 49 ] Mr. Moen pointed out that Ms.

Ropchan had not actually brought a cross-application for any s. 7 relief. (After reviewing the file materials and a procedure-card print-out for this action, I believe he is right.) However, the parties appear to have fully engaged on the s. 7 front, particularly via their post-application filings and submissions. [ 50 ] In light of Mr. Moen making no material counter-arguments (time-bar or otherwise) concerning the dance lessons, summer camps, dental, and health expenses outlined on pages 4 and 5 of Ms.

Ropchan's concise letter (and reiterated in her October 8, 2021 letter), and particularly given the modest scale of these expenses ($500 per year for the dance lessons (2016-2020); a one-time expense of $460 for camp; and dental and health expenses of $239 and $422, respectively), and given the "traditional

section 7" character of each of these expenses, I approve these as

section 7 expenses and direct that MEP treat them as such retroactively, assigning them to the years in which they were incurred, and allocating them between Ms. Ropchan and Mr. Moen in proportion to their prevailing incomes in those years (effectively increasing Mr. Moen's arrears in those years). [ 51 ] The core

section 7 debate centered on post-secondary expenses for the older daughter i.e. did the mother have RESP funds available to help defray such expenses? did the daughter receive an inheritance expressly or implicitly to help with such expenses? did the daughter report all of her earnings from summer-time and during-school-year work? did the daughter actually have to incur any student loans in light of these other (possible) resources? [ 52 ] Complicating this analysis is Mr.

Moen's argument that this daughter has cut off all contact with him for no defensible reason and, as such, should be effectively disqualified from support. Ms. Ropchan counters that the father's sub-par parenting is the effective cause of the estrangement i.e. that the daughter has good reason for having no relationship with Mr. Moen. [ 53 ] I find that the evidence on both dimensions -- other potential sources of support and cause(

s) of estrangement -- conflicts in many material respects. Accordingly, I am not in a position to resolve either aspect on the basis of affidavit evidence alone. [ 54 ] In any case, given the father's current lack of income, both points are academic, at least for now. [ 55 ] If and when Mr. Moen becomes re-employed or otherwise receives an income, and if Ms. Ropchan still seeks contributions from Mr. Moen, I will

schedule (and hear) a short viva-voce hearing, with evidence from Mr. Moen, Ms. Ropchan and the daughter, to resolve these evidentiary conflicts and determine whether Mr. Moen has an obligation to contribute to the daughter's post-secondary expenses and, if so, in what proportion. Costs [ 56 ] The final outstanding issue is costs of the August 5, 2021 application. [ 57 ] Ms. Ropchan succeeded in preserving Mr. Moen's pre-February-24-2021 liability for child support and in defending the continued existence of the resulting arrears. She also succeeded in having the above-noted subset of

section 7 expenses recognized as such. [ 58 ] Mr. Moen succeeded in having child support reduced in line with his reduced incomes after February 24, 2021 through to November 8, 2021 and in having ongoing child support set at zero for the time being. He also succeeded in obtaining (or continuing) a stay on the enforcement of arrears, also for the time being. [ 59 ] As noted, the debates over the

section 7 treatment of post-secondary expenses and the cause(

s) of estrangement could not be resolved on the current evidence. [ 60 ] In view of the divided success here, the parties will bear their own costs. Written outstanding-issue submissions received on October 7 and 8 and November 8, 9, 10 and 12, 2021. Dated at Edmonton, Alberta this 17 th day of November, 2021.

M. J. Lema J.C.Q.B.A. Appearances: Kelly Moen for the Self-Represented Applicant Danielle Klemen Legal Aid Alberta for the Respondent