Bodnaruik v Vince, 2024 ABCA 30

In the Court of Appeal of Alberta Citation: Bodnaruik v Vince, 2024 ABCA 30 Date: 20240125 Docket: 2203-0188AC Registry: Edmonton Between: James Bodnaruik Appellant (Applicant) - and - Charlene Vince Respondent (Respondent) _______________________________________________________ The Court: The Honourable Justice Thomas W. Wakeling The Honourable Justice Bernette Ho The Honourable Justice April Grosse _______________________________________________________ Memorandum of Judgment Appeal from the Order by The Honourable Justice G. Dunlop

Dated the 14th day of September, 2022 Filed on the 5th day of October, 2022 ( Docket: FL03 65616) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] James Bodnaruik [1] appeals Justice Dunlop’s order [2] that he pay child support arrears for 2018 to 2021 and spousal support arrears from January 2019 ongoing to December 2023. [ 2 ] During oral submissions, Mr. Bodnaruik’s counsel informed us that his client withdraws his appeal with respect to child support. [ 3 ] Mr.

Bodnaruik and Charlene Vince were in a common law relationship since 1999, separating temporarily in 2006 and finally in 2009. [3] They have two children and also raised Ms. Vince’s two children from prior relationships. [4] [ 4 ] Three court orders required Mr. Bodnaruik to pay child and spousal support. [ 5 ] In 2010 Justice Browne ordered Mr. Bodnaruik to pay child support of $3,000 per month for three of the children and spousal support of $500 per month, based on imputed income of $166,331.36. [5] [ 6 ] In 2012 Justice Ouellette granted a consent variation order. It decreased Mr.

Bodnaruik’s child support to $1,400 per month starting November 1, 2012 based on income of $76,970 for Mr. Bodnaruik and $0 for Ms. Vince. No change was made to his previously ordered spousal support obligation. It ordered Mr. Bodnaruik to make monthly payments of $100 starting November 1, 2012 towards child and spousal support arrears. [6] [ 7 ] In 2013 Justice Hillier varied Justice Ouellette’s order. Mr. Bodnaruik now had to pay child support of $1,183 for two of the children and spousal support of $317 per month starting August 31, 2013 based on income of $82,700 per year for Mr. Bodnaruik. It ordered Mr.

Bodnaruik to pay $150 per month towards child support arrears. [7] [ 8 ] On November 10, 2021 Mr. Bodnaruik applied to cancel arrears, terminate ongoing child and spousal support, and vary parenting. [8] Ms. Vince cross-applied for ongoing spousal support, retroactive child and spousal support and arrears for 2018 to 2021 – though it is unclear if this cross-application was filed other than as attached to Ms.

Vince’s concise letter [9] – as well as parenting. [10] Justice Mandziuk set a special chambers hearing that was adjourned to July 15, 2022. [11] [ 9 ] In his concise letter for the special chambers hearing, Mr. Bodnaruik explained that he sought retroactive and ongoing child support for the child who was living with him or the removal of arrears in lieu and to terminate spousal support on the basis that Ms. Vince has done nothing towards supporting herself in the ten years she received spousal support. [12] In her concise letter for this hearing, Ms.

Vince indicated that she was cross-applying for retroactive spousal support for 2018 to 2021, retroactive child support and ongoing spousal support on the basis that Mr. Bodnaruik did not provide financial disclosure as required and his support payments were based on income lower than his actual income. [13] [ 10 ] Justice Dunlop heard these applications in special chambers. [ 11 ] In oral argument Ms. Vince sought arrears for child and spousal support based on Mr. Bodnaruik’s actual income – not the lower income used in previous orders. She relied on Mr. Bodnaruik’s most recent financial disclosure. [14] Ms.

Vince also sought ongoing spousal support, noting that two of the children require special care – one has special needs and the other a medical condition. [15] [ 12 ] Mr. Bodnaruik represented himself. He took the position that Ms. Vince should have sought higher spousal support sooner [16] and that spousal support payments should end as he provided support for ten years. [17] He submitted that one child no longer has special needs [18] and that Ms.

Vince chose not to take advantage of education options she has as a full status indigenous person. [19] He agreed that his income had been higher for the past three years, but said that he disclosed his income to Maintenance Enforcement and it did not change his payments. [20] Mr. Bodnaruik also said that he owed $1,483 in arrears at that time and asked that these arrears be removed because one of the children had lived with him for over a year. [21] [ 13 ] Justice Dunlop found, based on Ms. Vince’s uncontradicted affidavit evidence, that Mr.

Bodnaruik’s income was higher for 2018-2021 than the income used to calculate his support payments. [22] He varied child support retroactively. The chambers judge noted

that the payor has an obligation to provide the payee with up-to-date accurate information about the payor’s income. As a result, he dismissed Mr. Bodnaruik’s argument that Ms. Vince should have applied for a variation sooner. [23] [ 14 ] With respect to spousal support, Justice Dunlop noted that entitlement was not in issue. There had already been court orders directing it. [24] He did not regard the delay in seeking support going back to 2018 as a basis for rejecting the request. It resulted from Mr. Bodnaruik’s failure to provide disclosure to Ms. Vince.

She would not have known about the income change just because Mr. Bodnaruik disclosed it to Maintenance Enforcement. [25] The chambers judge concluded that there should be an end-date for support. [26] Justice Dunlop varied spousal support for 2019 to 2021 – the three years prior to the variation applications before him – to reflect Mr. Bodnaruik’s actual income. [27] He relied on the spousal support advisory guidelines. The chambers judge determined that support should end December 2023 – the relationship lasted about eleven years. His decision reflects the evidence Ms.

Vince gave, the special needs of some of the children, and the fact that there was no indication Ms. Vince was unable to work. [28] [ 15 ] Mr. Bodnaruik appeals Justice Dunlop’s order and seeks a trial to determine support, the process for which is on hold pending this appeal. [29] [ 16 ] Before us, now represented by counsel, Mr. Bodnaruik argues that Justice Dunlop made three errors: failed to consider sections 58 , 60 , 61 , 62 and 77 of the Family Law Act , [30] misapprehended the evidence, and made a prejudicial final order without full oral evidence. [31] [ 17 ] Mr.

Bodnaruik submits that the chambers judge was wrong not to consider whether Ms. Vince was entitled to spousal support, whether there was a change in circumstances warranting variation, the parties’ previous agreements as to spousal support – at the time of separation in 2006 and the decrease in 2013 when Mr. Bodnaruik’s income went down, Mr. Bodnaruik’s financial obligations for the child who was living with him and his other children, and Mr. Bodnaruik’s own application for child support for the child who was living with him. [ 18 ] He adds that Justice Dunlop was wrong not to impute income to Ms.

Vince despite finding that there was no evidence she was unable to work. He points to deficiencies in the evidence including the lack of evidence of Ms. Vince’s income or benefits she may have received, especially income that he says might not show up on her tax return given her treaty status, or an explanation from her as to why she had no employment in the period the children no longer needed her care. Mr.

Bodnaruik also takes issue with the chambers judge’s apparent determination that the two were adult interdependent partners for almost eleven years without analysing the evidence that suggested they no longer were after their first separation. [ 19 ] In Mr. Bodnaruik’s view, the chambers judge should have directed a change in process given the absence of sufficient evidence on the record on key points, particularly Ms. Vince’s efforts to become self-sufficient, her income and the duration of the relationship.

He says it was not appropriate to make a final order in chambers without oral evidence on an incomplete record. [ 20 ] Mr. Bodnaruik asks either for a new hearing or trial or for this Court to make the necessary findings as the court of first instance. [ 21 ] As noted, at the hearing Mr. Bodnaruik abandoned his arguments with respect to child support. He conceded that this was no longer an issue. [ 22 ] The remaining question is whether Justice Dunlop made a reversible error [32] in ordering the retroactive and ongoing spousal support that he did. [ 23 ] Mr.

Bodnaruik has not convinced us that the chambers judge did. [ 24 ] Contrary to Mr. Bodnaruik’s submissions, the chambers judge was aware of the relevant factors. He appreciated that Ms. Vince’s request to vary support payments was based on a change in Mr. Bodnaruik’s income [33] that she only recently learned about. [34] Justice Dunlop understood Ms. Vince’s means, needs and circumstances. At the time their relationship ended, she had been the primary caregiver of the three children, and the special needs of at least one child hampered her ability to re-enter the workforce.

She had no independent income though she previously tried to obtain employment when she had consistent support from Mr. Bodnaruik. The chambers judge acknowledged that the relationship duration was “at best” eleven years. [35] [ 25 ] Justice Dunlop understood Mr. Bodnaruik’s position and his means, needs, and circumstances. Mr. Bodnaruik argued that he had declared his income to Maintenance Enforcement. In doing so, he fulfilled any disclosure obligations the law imposed on him. Ms. Vince should have raised the issue of higher support sooner if she thought she was entitled to a higher amount.

Her spousal support should end. Her lack of stable housing was “her own doing”. She had no further responsibilities towards the children – one child no longer had special needs and another who had drug issues was not, as far as he knew, living with Ms. Vince. [36] [ 26 ] In determining that the spousal support order should be terminated, but not until December 31, 2023, and that support should be retroactively varied for three years to account for Mr. Bodnaruik’s change in income, Justice Dunlop committed no errors.

The chambers judge is presumed to know the applicable legal principles. [37] Nothing in his reasons suggests that he did not. [38] His detailed reasons on this point [39] lead us to conclude that the chambers judge was satisfied that Ms. Vince continued to be entitled to support until December 31, 2023, that the increase in Mr. Bodnaruik’s income was a change in circumstances warranting varying those support payments, that imputing income to Ms. Vince was not appropriate given the facts of this case, and that it was appropriate to base the termination date for support on a relationship length of eleven years.

We are not in a position to reweigh the evidence supporting these determinations under the guise of appellate review. Likewise, the chambers judge must have been satisfied that the evidence before him was sufficient for him to make the necessary determinations. We see no procedural unfairness to Mr. Bodnaruik, who had an opportunity at the special chambers hearing to adduce any evidence he regarded as necessary. [ 27 ] In addition, some of the issues that Mr. Bodnaruik now raises were either not relevant nor put to the chambers judge. Two examples come to mind. First, Mr.

Bodnaruik never raised earlier agreements as to the quantum of support payable in 2006 and 2013, the relevance of which is unclear, or his financial obligations to another child “[i]t appears he had ... in 2011”, which he does not

particularize. [40] Second, he now questions whether he and Ms. Vince were ever adult independent partners. [41] [ 28 ] To the extent that Mr. Bodnaruik’s difficulty with the chambers judge’s order arises from his failure to disclose his income to Ms. Vince as he was required to do, he is the architect of any financial hardship resulting from the retroactive spousal support. [42] [ 29 ] The appeal is dismissed. [ 30 ] With respect to the issue raised as to whether the spousal support order was final, only Mr. Bodnaruik now questions whether the order was or should have been final. Before Justice Dunlop, Mr.

Bodnaruik applied for a termination order, which is what he obtained, just not as quickly as he wanted. In these particular circumstances, we are not prepared to intervene. Appeal heard on November 27, 2023 Memorandum filed at Edmonton, Alberta this 25th day of January, 2024 Wakeling, J.A. Authorized to sign for Ho, J.A. Authorized to sign for Grosse, J.A. Appearances: J.D. Kiriak for the Appellant S. Raja for the Respondent