Escobar v Escobar, 2023 ABKB 485

Court of King’s Bench of Alberta Citation: Escobar v Escobar, 2023 ABKB 485 Date: 20230824 Docket: 4801 183526 Registry: Calgary Between: Mickala Anne Escobar Plaintiff - and - Cristian Roberto Escobar Defendant _______________________________________________________ Endorsement of the Honourable Justice A.G.

Kuntz _______________________________________________________ [ 1 ] The parties were before the Court on August 15, 2023, with the Defendant / Applicant (the Applicant ) seeking an interim Stay of Enforcement of spousal support, both arrears and ongoing, pursuant to the Order of Justice W.T. de Wit of January 14, 2021 (the de Wit Order ), until the currently scheduled Domestic Special to review support on January 23, 2024. [ 2 ] In follow up correspondence to the Court dated August 18, 2023, counsel to the Applicant advised that the application was for a Stay of Arears only.

An MEP Statement shows the Applicant owes $20,781.00 in arears. [ 3 ] The Plaintiff / Respondent (the Respondent ) opposes the Stay. The Respondent is not working due to personal difficulties

but plans to return to work sometime this year. The Applicant agrees that the Respondent is not earning an income, although he believes she is capable of doing so. [ 4 ] The parties have one child, born in 2012. The parties were married on November 30, 2017, and ceased cohabiting March 28, 2019. [ 5 ] The Applicant paid the Respondent’s rent in the amount of $2,200.00 per month from the date of separation to January 2022 when she moved to a new home. The Applicant has never paid any additional amounts for Spousal Support.

The Applicant submits that the rent payments were “indirect support” and have resulted in an overpayment to the Respondent that will be equalized after the Domestic Special in January 2024. That being the case, the Applicant says it would be fair to stay the arrears until then. [ 6 ] The de Wit Order required the Applicant to pay $336.67 per month in Spousal Support.

The de Wit Order also directed that if the Applicant “ceases to pay the rent for the house that the [Respondent] is residing in, then the [Applicant] shall pay the [Respondent] $836.67 in Spousal Support each month….” [ 7 ] As per the recitals to the de Wit Order, the de Wit Order was made further to the Consent Interim Without Prejudice Support Order of Justice K.D. Nixon granted on November 29, 2019 ( Nixon Order ).

Pursuant to the Nixon Order, the Respondent was directed to pay, among other things, $2,407.00 in Spousal Support to the Applicant (i.e., more than $2,200.00 per month the Applicant paid for the Respondent’s rent from March 2019 to January 2022).

A plain reading of the de Wit Order makes it clear that the Applicant’s Spousal Support obligation was calculated considering the rent he was paying for the Applicant, and that the rent was to be in addition to a monthly payment of $336.67 so long as the Respondent was residing in the home she lived in when the de Wit Order was made. [ 8 ] I do not believe that either counsel highlighted these important terms of the de Wit Order at the hearing on August 15, 2023.

It was disingenuous for the Applicant to argue that his rent payments were “indirect support” to the Respondent and that the cost of rent “greatly exceeded the amount of support owed” when in fact rent was contemplated by both the Nixon Order and the de Wit Order and formed part of his Spousal Support obligations. [ 9 ] Counsel to the Applicant represented that the Director had been served with notice of the application, but there was no affidavit of service on file. Counsel to the Applicant argued that a stay is ultimately a discretionary remedy of the court under s. 32 of the Maintenance Enforcement Act .

However, s. 32(

a) states that a stay of enforcement may be granted only if the court is satisfied that “the debtor has made attempts to establish a payment arrangement with the Director and there was a valid reason why the debtor was unable to enter into an arrangement…” There was no evidence of the Applicant having tried to establish a payment arrangement with the Director, and therefore his application must be dismissed on that fact alone. [ 10 ] In light of the foregoing, I see no basis upon which to grant the Stay of Enforcement requested by the Applicant, and the Applicant’s application is denied. The Respondent will have her costs in accordance with

Schedule C. Heard on the 15 th day of August, 2023. Dated at the City of Calgary, Alberta this 24 th day of August, 2023. Allison Kuntz J.C.K.B.A. Appearances: David M. Taylor of Foster LLP for the Defendant / Applicant Aaron M. Vanin of Resolve Legal Group for the Plaintiff / Respondent