PATRICK GERALD SUPEENE Plaintiff AND: DEBORAH RAE SUPEENE Defendant, 2011 YKSC 3

SUPREME COURT OF YUKON Citation: Supeene v. Supeene, 2011 YKSC 3 Date: 20110110 Docket S.C. 08-D4089 Registry: Whitehorse BETWEEN: PATRICK GERALD SUPEENE Plaintiff AND: DEBORAH RAE SUPEENE Defendant Before: Mr. Justice L.F. Gower Appearances: Kathleen Kinchen Debbie Hoffman Counsel for the Plaintiff Counsel for the Defendant REASONS FOR JUDGMENT DELIVERED FROM THE BENCH [ 1 ] GOWER J. (Oral): This is an application for a temporary stay of payment of spousal support by Mr. Supeene.

Section 32 of the Maintenance Enforcement Act, R.S.Y. 2002, c. 145, is pretty clear. Although no case law was presented considering this section, the words of s. 32(1) state: “A court shall not stay proceedings for the enforcement of a maintenance order unless satisfied on clear and convincing proof that the continuation of the proceedings would cause unjustifiable hardship to the respondent or to persons other than the claimant, dependent on the respondent.” (emphasis added) So on the face of it, that is a pretty tall order for an applicant on a stay application, and there is a heavy onus on Mr.

Supeene. [ 2 ] I am sympathetic to the arguments made by Ms. Supeene’s counsel that, in these circumstances, I would have expected more detail from Mr. Supeene on the current status of his income, the current status of his expenses, and the current status of his assets. I do not have that kind of level of detail. Mr. Supeene has been quite diligent in some respects in terms of outlining the medical-related expenses that he has incurred for the various trips to physicians over the summer months and into the fall.

But, that is not enough, in my view, because I do not know how I can make an assessment of whether a continuation of the enforcement would cause unjustifiable hardship to -- is this to the respondent or to persons other than the claimant dependent on the respondent? [ 3 ] MS. HOFFMAN: See, I thought that that was the person who’s responding to the enforcement. That’s how I read the section, but I didn’t bring the full Act with me. [ 4 ] THE COURT: That would be logical. [ 5 ] MS. HOFFMAN: I would agree. [ 6 ] THE COURT: Otherwise, it doesn’t make any sense. [ 7 ] MS.

HOFFMAN: I would agree. [ 8 ] THE COURT: All right. So with that little blurb, I do not know how I can make a determination of unjustifiable hardship, vis-à-vis Mr. Supeene, without some more detail in that regard.

[ 9 ] As I indicated in my reasons following the arbitration, it still does seem to me that there are a number of areas in which Mr. Supeene could economize and perhaps make some changes in terms of his monthly expense. Given that I alluded to that flexibility in my reasons back in May, for that reason alone, I would have expected some follow-up from Mr.

Supeene in order to say, “Look, Judge, I’ve tried to make these changes, I’ve tried to make these cuts, this is bare bones, and this is all I can afford, and I can’t go any lower, and accordingly I cannot pay spousal support at the current rate.” That just has not been done, and it certainly has not been done to my satisfaction. [ 10 ] Similarly, it is important to know what the status of Mr. Supeene’s assets are, and without a sworn financial statement or something akin to that, there is really no evidence of that. He has only responded to Ms.

Supeene’s allegations that he may have had an interest in certain properties, which he says no, that those belong to his wife. [ 11 ] This is a difficult situation for both parties. I am sympathetic to Mr. Supeene’s medical issues over the past summer. I am hopeful that he can get back on track in due course. But, I am also very sympathetic to Ms. Supeene’s difficulties in terms of having to survive on her limited disability income, and the stress that she is incurring by not having received the lump sum, which was to go towards payment of half the joint debt.

She still sounds like she has got a lot of balls in the air to try and manage that debt. That stress is causing her further medical problems, and exacerbating her symptoms from her Hep-C. This is a very serious and grave situation for both parties, and for that reason, again, I am sympathetic to the submission that Mr. Supeene ought to have done more. [ 12 ] For example, perhaps Mr. Supeene ought to have been more careful in some of the choices that he has made: (

a) using a doctor in Whitehorse, when he knew that the Yukon Government policy would not cover any of his travel expenses; (

b) choosing to live in a rural off-the-grid context, which has increased his cost of living; and (

c) not making any voluntary payments in the meantime. [ 13 ] But, most importantly he has not provided an update in terms of the current status of his income and expenses, and has put Ms. Supeene in the situation of having to make assumptions about his income. That just does not cross the threshold in terms of the degree of detail that I would expect on this kind of an application. [ 14 ] If there is a complete stay, then Ms. Supeene gets nothing. Yet, she is in desperate need of something, even 50 to 100 dollars a month can make a huge difference in her circumstances. Fifty to 100 dollars per month in Mr.

Supeene’s context does not have nearly the proportionate impact, because of the fact that he lives rent free, and because of the fact that there are economies of scale in terms of living with his partner, Ursula. [ 15 ] Mr. Supeene has an obligation to pay spousal support, and every economic decision that he makes on a daily, weekly, monthly and annual basis has to be made with that obligation in mind, and not simply to the extent to which it is going to impact his own financial situation. [ 16 ] Now, having said that, I do not think it is fair to expect that Mr.

Supeene can continue to pay the full amount in the interim, because he is only working half-time and he says that he expects to only be able to work on a part-time basis until about the end of April. So what I am persuaded to do, at the end of the day, is to consider seriously the alternative submission by Ms. Supeene, that there should be some partial stay to reflect his probable income of about $70,000, which, when reduced to half-time, is estimated to be in the neighbourhood of $35,192. Using that amount, based on the calculations under the Spousal Support Advisory Guidelines , if Mr.

Supeene put his net disposable income into a pot with Ms. Supeene’s net disposable income and divided that by half, then he would still have the ability to pay $446 per month. The current order is that he pay at the rate of $1,020 per month. Therefore, and subject to further submissions by counsel so that my order achieves the intended result, I order that a stay be imposed on Maintenance Enforcement to the extent of $574 per month ($1,020 - $446).

That would allow Maintenance Enforcement to continue to collect or enforce up to a maximum of $446 per month. [ 17 ] I further order that there be a stay with respect to the ability of Maintenance Enforcement to impose any type of driver’s licence denial or seizure of assets for the period of the stay. [ 18 ] I specifically order that the federal garnishment which is in place not be stayed. My intention there is that, if there are any funds due to Mr.

Supeene by way of income tax refunds or GST refunds and the like, then those can be garnisheed and applied towards the arrears. [ 19 ] I further order that the stay will be effective until April 30, 2011. [ 20 ] Now, in terms of Mr. Supeene agreeing that the stay could be ended sooner if he goes back to work full-time earlier than that, how can that be incorporated in the terms of the order? Can I make a direction or an order that he advise -- [ 21 ] MS. KINCHEN: Well, yes, you could. [ 22 ] THE COURT: -- Ms. Supeene immediately upon returning to work? [ 23 ] MS.

KINCHEN: Or Maintenance Enforcement. [ 24 ] THE COURT: Or Maintenance Enforcement. [ 25 ] MS. KINCHEN: Yes, because that -- in fact, that’s what he has said he would do, that he would advise them. So you could make that order that he would advise Maintenance Enforcement immediately upon returning to full-time work, and then everything would go back to normal or to -- [ 26 ] THE COURT: I will make that order. [ 27 ] MS. KINCHEN: -- pre-stay.

[ 28 ] THE COURT: Okay. So have I dealt with everything that I need to deal with so that you can draft the order? [ 29 ] MS. KINCHEN: I think you have, yes. [ 30 ] THE COURT: Okay. Costs? [ 31 ] MS. HOFFMAN: I mean, as you’ve said, it’s a difficult situation. I’m inclined, because Ms. Supeene had to come to court today to ask for costs, costs of the application. [ 32 ] THE COURT: Ms. Kinchen? [ 33 ] MS. KINCHEN: Well, I mean I think that there was a good reason for Mr. Supeene to be in court today.

I mean it wasn’t a -- it wasn’t an application without merit, and he was partially successful, both parties were partially successful. So I would say there should be no costs. [ 34 ] THE COURT: Given that there is effectively a mixed result, it is appropriate that each party bear their own costs, and I so order. [ 35 ] MS. HOFFMAN: Thank you, Your Honour. ________________________________ GOWER J.