Edden v Foley, 2024 ABKB 48

Court of King’s Bench of Alberta Citation: Edden v Foley, 2024 ABKB 48 Date: 20240125 Docket: FL03 22666 Registry: Edmonton Between: Jolene K. Edden Applicant - and - Tyler A. Foley Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice M. J. Lema _______________________________________________________ I. Introduction [ 1 ] Should minimum monthly payments be ordered and security provided for child-support arrears of $102,000 found owing in Edden v Foley , 2023 ABKB 364 .

[ 2 ] That amount represents shortfall child support in 2010-2015, with no shortfall found for 2016 and the support review for 2017-2023 on hold pending (possible) further disclosure of and submissions on the payor’s income. [ 3 ] The recipient mother seeks a minimum payment of $65,000 followed by minimum monthly payments of $10,000 until the arrears are cleared. Recognizing uncertainty over the father’s current income, she seeks these payments entirely, or largely, out of the father’s assets.

She also seeks security for the arrears owing from time to time, anchored on his assets. [ 4 ] Per the father, current-income uncertainty precludes directing periodic or any payments. Alternatively, any payment arrangement should be pursued and (ideally) concluded between the father and Maintenance Enforcement.

As for security, none should be directed, with Maintenance Enforcement having sufficient remedies to enforce payments under any arrangement made. [ 5 ] I find that the entire arrears are immediately payable (i.e. no periodic payments), that security is warranted, and that sufficient security can be achieved by registering the arrears order at Land Titles i.e. no court-ordered security is necessary here. II. Background [ 6 ] The background is outlined in 2023 ABKB 364 .

In paragraphs 6 to 64, I examined whether the father, the child-support payor, fell short on support in 2011-2015, if so by how much, and his liability now for that shortfall. I found that he did, by $102,012, and that he is required to pay the full amount to the mother (paras 65-70). [ 7 ] Payment- and security-wise, I directed the following: So he must pay now, and he can afford it, all aside from uncertainty over his current income i.e. whether the company is effectively generating more income for his (and his co-shareholder) than indicated in its financial statements.

With payments at a pace the parties agree on or, failing agreement, I will set, and same for whether the payments should be secured and, if so, how (as discussed below). [para 70] [emphasis added] [ 8 ] The “discussed below” reference was to paras 102 and 103: The mother asked for permission to address the issue of security for any child-support arrears found owing. As noted above, I invite submissions from both parties on that subject as well as proposed arrears-payment terms, as part of their follow- up submissions. [ 9 ] Below are the parties’ submissions on both aspects. III.

Parties’ positions on payments and security [ 10 ] The mother’s counsel wrote on June 28, 2023 about payments of and security for the arrears: The Court has also asked us to supply submissions with respect to how and when payment of the arrears can or should occur. In this regard, we propose the following: 1. An immediate payment of $65,000.00 occur towards the established arrears. [discussion of corporate cash reserve of $200,000 and personal bank-account balances of approximately $49,000 and $10,000 (latter USD)]. We propose that payment of at least $65,000.00 occur forthwith.

We propose the balance of any arrears be paid out at the rate of $10,000.00 per month , and provided payments occur, there be a stay on any. ... 2. Further, given Mr. Foley's significant asset base, certain assets could be sold quickly to effect payback of any amounts due and owing. 3. There is no evidence of any form of undue hardship . ... Mr. Foley has a line of credit on his home, and there is no indication that he is unable to withdraw funds from that line of credit. Mr. Foley also owns a rental home , that has an estimated value , based on Mr.

Foley's own sworn Statement of Income, Assets and Liabilities, of $150,000.00, with no mortgage . As to the request that the Applicant ' s judgment be secured to the Respondent ' s assets, it i s f i rst noted that the Special Chambers application filed in this matter on January 27 , 2023 , specifically references a request to secure any amounts owing against either the personal or corporate assets of the Respondent. Further we note S 26.1 (1) of the Divorce Act which states: the Governor in Counsel may establish guidelines respecting orders for child support , including ... guidelines (

d) authorizing a Court to require that the amount payable under an order for child support be paid or secured , or paid and secured , in the manner specified in the order [.] We further note

Section 12 of the Federal Child Support Guidelines w hich provides : The cou rt may require in the child support order that the amount payable under the order be paid or secured , or paid and secured , in the manner specified in the order .

In t he circumstances , it is submitted that an order for the child support amounts must be secu red to assets , is necessary in order to [e]ffect and ensure the payment of any and all amounts owing. [ 11 ] The father’s then-counsel replied, via July 13, 2023 letter, on payments, as follows: As a result of the above [including submissions that the arrears finding needed to be revisited ], my friend’s suggestion that Mr. Foley pay $65,000 forthwith to the Plaintiff is inappropriate. The more appropriate course is that, once final determinations of amounts

payable are made, a payment

schedule can be judicially determined based on what is feasible per Mr. Foley’s present income (which has yet to be determined). [The father’s then-counsel did not address security in that letter.] [ 12 ] As noted, it was true then and is now that the father’s current income has yet to be finally determined. More information is required about the income and expenses of a corporation co-owned by him and another person for the years 2017 to present. As I understand it, the parties currently disagree about whether the father has provided all information required to date (whether in response to notice(

s) to disclose or questioning) and whether further disclosure is or may be necessary. [ 13 ] As for whether the arrears finding had to be revisited, per my September 6, 2023 letter to counsel (discussed further below), I advised the father’s then-counsel that he would have to (at minimum) apply for permission to submit further evidence and to conduct further cross-examination i.e. before any arrears adjustment(

s) were possible. [ 14 ] The mother’s counsel responded (via August 25, 2023 letter) on payments (among other aspects): [The father’s then-counsel’s] suggestion that $65,000 is inappropriate is not accompanied by any suggestion as to what amount is appropriate, as the Court directed.

I note that no payments (i.e. $0.00) to the arrears of over $100,000 established by the decision of June 16, 2023 have been made to date. ... [The mother] simply wishes to bring this matter to its conclusion as quickly and efficiently as possible. [emphasis added] [ 15 ] By September 6, 2023 to counsel, I observed (on payments) as follows: I take [the father’s then-counsel’s] point (in part) that determining an appropriate payment plan could involve examining [the father’s] current income , with that exercise not yet completed.

However, I would like to have [the father’s then-counsel’s] position, with reasons, on [the mother’s counsel’s] argument that the arrears, or at least $65,000 of them, can and should be paid out of [the father’s] assets i.e. all aside from his current income. [emphasis added] [ 16 ] By September 14, 2023 letter, the mother’s counsel again called for the father’s position on payments and security. [ 17 ] By September 18, 2023 letter, the father’s then-counsel reiterated that the arrears amount was off-target and that, in that circumstance, determining appropriate payments was premature.

As for security, he stated: ... as far as I know, there is no proper application before the Court for security . As I read the reasons for decision in this matter, [the mother’s counsel] sought permission to speak to the issue (para 102), and further submissions were invited.

I will respond to the issue of security upon hearing from [the mother’s counsel] as to his position on the test being made out. [ 18 ] The mother’s counsel responded (in part) via October 16, 2023 letter: Notwithstanding being given several opportunities to do so, [the father] has put forward no payment plan, whatsoever, on the existing amounts that are set out due and owing, at the very least, under the [June 16, 2023 Order]. Again, the amount of $102,012.00 has already been directed by the Court as being due and owing for the years 2011 to 2015.

In respect of ... security, we respectfully disagree that there is no application ... [for] the same before the Court. ... [reference] the existing Special Chambers materials, in particular, paragraph 7 of the Family Law Special Chambers Application filed by [the mother] on January 27, 2023. [Para 7 under “Remedy claimed or sought”: An order directing that any retroactive amounts owed are to be secured against the [father’s] corporate assets or personal assets.”] Further, ... paragraph 5 of [the] Order dated June 16, 2023 also permits the parties to speak to the issue of ... the security of arrears.

The parties were to do so by June 28, 2023.

In sum, the [mother’s] position was that the Court has the authority to grant security over [the father’s] assets, and the Court should exercise its authority to do so on this basis, particularly given the request is in the original Special Chambers Application .... [ 19 ] By November [10 th ], 2023 letter, I reiterated (effectively) “no uncertainty over the 2010-2015 arrears amount”, ruled that the mother had given sufficient notice of her security request, and gave the father until November 20 th , 2023 to provide his payment and security positions. (On the sufficiency of notice, via an application, of an intention to seek security, see DGS v HAS , 2019 ABQB 887 at paras 78-80 .) [ 20 ] After obtaining a deadline extension, the father’s new counsel addressed payments and security (among other aspects) via December 4, 2023 letter: [ Payment of arrears ] -- [The father’s] position is that he be permitted to make arrangements with the Director of Maintenance Enforcement for an orderly retirement of the arrears ordered.

Maintenance Enforcement is equipped to make determinations based on a payor’s income, and does so as a matter of course on the many, many payor/creditor files it oversees. [ Security ] -- [The father’s] position is that the powers of the Director of Maintenance Enforcement when a payor defaults , including suspending a defaulting payor’s driver’s license or passport, provide [the mother[ with sufficient security .

Clearly, [the father] must be able to drive to meet the requirements of his [automotive-wholesale] employment, and maintaining his driver’s license will be a sufficient incentive for him to make the payments required of him as they fall due. [emphasis added] [ 21 ] The mother’s counsel responded via December 7, 2023 letter reiterating her earlier positions i.e. payment arrangement required, as proposed earlier, given the “size of the arrears”, and security required, “given the [father’s] significant asset base ....” IV. Issues

[ 22 ] Hence these issues to be determined: a. should the issue of payments be left to the father and Maintenance Enforcement? b. if not, can the Court determine the payment structure? c. if so, what payment(

s) should be directed? d. in any case, should security be ordered for the outstanding arrears? and e. if so, in what form(s)? V. Analysis A. Potential role of Maintenance Enforcement [ 23 ] I believe it is common ground that the child-support arrears here qualify as “maintenance” as defined in para 1(1)(

d) of the Maintenance Enforcement Act ( MEA ) , the arrears order is a “maintenance order” (per para 1(1)(e)), and the mother and father are “creditor” and “debtor” (paras 1(1)(

a) and (b)), respectively. [ 24 ] Either party (creditor or debtor) can file a maintenance order with the Maintenance Enforcement Program: para 7(1)(a) (contemplates “order[s] filed with the Director by the creditor or the debtor ...”); s 8 ( ... a debtor ... may file the order with the Director”); and ss 9(1.1) (debtor withdrawing a maintenance order “filed by the debtor”). [ 25 ] Nothing in the above correspondence concerning payments and security reflects filing of the order here by either party. [ 26 ] It is implicit in the father’s most recent correspondence that he will -- perhaps depending on if I approve his approach – file the order with MEP and work with them on a payment arrangement. [ 27 ] It is clear that MEP works with maintenance debtors on payment arrangements: see “Payments Arrangements – Maintenance Enforcement Program” on MEP’s website (alberta.ca/maintenance-enforcement-program).

B. Court can rule on payments [ 28 ] However, the Court can also rule on payments (or no payments i.e. full amount payable, or otherwise), per s. 11 of the Federal Child Support Guidelines : The court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments. C.

Appropriate payment here [ 29 ] I have concluded that the child-support arrears here should be paid in a lump sum (i.e. entire amount payable) i.e. not via periodic payments, for these reasons: 1. the genesis of the arrears in the father’s failure to provide timely and ongoing disclosure of the large increases in his income over 2011-2015 (as detailed in 2023 ABKB 364 ).

It is not clear to me, now that the appropriate child support for those years has been identified, why he should not square up with the mother immediately or next-to-immediately i.e. why she should have to wait months or years to receive the support she should have received years ago i.e. assuming a commensurate ability to pay (found here, as discussed below, arising from his ample net worth); 2. the child’s age (14.5 years old) i.e. when she will benefit fully from the catch-up support i.e. versus possibly “aging out” before the arrears would or might be cleared via periodic payments; 3. the father’s ability to pay the entire amount, whether via the line of credit on his home (estimated net equity (circa January 2023) of $209,000 i.e. $475,000 estimated value minus $266,000 secured line of credit), financing anchored on his rental property (estimated clear-title value $150,000 as of same period), sale proceeds of the latter property (i.e. if sold), liquid assets ($60,000 as of same period), or repayment (in whole or in part) of his shareholder-loan receivable ($321,382 as of March 2021), or some combination i.e. in other words, out of his net worth of approximately $637,000 (i.e. $740,382 total of above credits minus unsecured debts of approximately $103,000).

And this asset survey excludes the value (presently undetermined) of the father’s 50 per cent interest in a corporate business venture where annual revenues ran from $3.5 million (2017) to $14.3 million (2021), with further disclosure potentially required to determine the net profitability of the business and its overall net value. (For a survey of cases examining whether lump-sum (versus periodic) payment of child support arrears should be directed (often turning on the payor’s ability to pay), see Wilson v Holmes , 2022 ABQB 153 at paras 82-99 .

See also Boyd v Boyd , 2018 ABQB 354 (Dunlop J.) (paras 106-108 , including this segment from para 108: “The Defendant has failed to establish that immediate payment of the full amount of arrears will create a financial hardship. I decline to order that payment may be made in installments.”) 4. my findings in 2023 ABKB 364 (paras 53-64 ) that “[r]equiring the payor to pay the noted arrears will not cause hardship. Alternatively, any hardship is outweighed by shortfall-support hardship experienced by the mother and child. Or, in any case, remedying the shortfall is more important than minimizing payor hardship”;

5. the timing here, with the $102,000 arrears identified (via 2023 ABKB 364) on June 16, 2023 i.e. more than seven months ago. Even if the question of lump-sum-versus-periodic payments has been up in the air since then, it was open to the father to start makingpayments, to any degree, at any point since that date.

And nothing in the correspondence with counsel on the payment and security issuesreflects that any such payments have been made. (Per the mother’s counsel’s August 25, 2023 letter, no payments had been made to thatpoint – see above excerpt); 6. the mother was willing to accept an “immediate” (circa June 28, 2023) payment of $65,000, followed by monthly payments of$10,000 until the arrears were cleared. But was almost seven months ago, and (per that payment proposal) the arrears would have beencleared before the end of 2023; 7.

I recognize that, as reflected in the noted judgment, the father’s income for 2017 to the present remains to be determined (in light of(as noted) further disclosure potentially being needed of his via-corporation earnings since 2017) and that, on a tentative basis, hisincome for ongoing child-support purposes was set much lower ($46,000) than his income in any of 2011 to 2015 (ranging fromapproximately $159,000 to approximately $355,000) i.e. as presently (and tentatively) gauged, the father may have limited (if any) abilityto pay, or start paying, arrears out of income.

However, child support arrears are not payable only out of income; and 8. the father has also had, and will have, the time value of the non-paid child support for 2011 to 2015, with the mother’s pleadingsnot including the recovery of interest and no appeal (as I understand it) of my interest-thus-not-available ruling in 2023 ABKB 364 (paras95-101).

And the 2011-2015 arrears amount have been overdue for (as applicable) between eight and twelve years already. [30] In these circumstances, no further deferral of payment is warranted. [31] Returning to para 70 of 2023 ABKB 364, in light of the parties’ inability to agree on the pace of payments, I set the $102,012in child-support arrears as immediately due and payable. [32] If the father does not clear the arrears in full by February 16, 2024, the mother has liberty to take collection action, whether onher own or with MEP assistance (i.e. depending on whether she chooses to file the arrears order), for the full amount of the outstandingarrears, including obtaining, registering (at PPR and Land Titles), and enforcing a writ of enforcement for the outstanding arrears againstone or more of the assets identified above.

D. No court-ordered security necessary here [33] Per s. 12 FCSG: The court may require in the child support order that the amount payable under the order be paid or secured, or paid and secured, inthe manner specified in the order. [34] Courts have identified various security-needed or security-advisable factors. For example, see the list highlighted by ShelleyJ. in Hodgson v Hodgson, 2011 ABQB 233, drawing on the noted cases: In Nugent v.

Nugent, 2004 ABQB 741, Park J. dealt with the question of whether to discharge a Court Order charging the property of apayor father who had failed to regularly pay child support. Park J. considered the application of s. 23 of the MEP Act, and referred to the factors set out in Kumar v. Kumar (1988), (ON SC), 48 D.L.R. (4th) 559 (Ont. H.C.). In that decision, Rosenberg J.was dealing with s. 10 of Support and Custody Orders Enforcement Act, 1985, S.O. 1985, c. 6, a provision very similar to s. 23 of theMEP Act.

He applied the jurisprudence dealing with when it would be appropriate to order security for a support order and setout a list of relevant factors (at para. 6): The best

summary of the situations in which security may be ordered is found in the reasons of the Honourable Judge Clements in Re LaFond and La Fond, [1979] 2 A.C.W.S. 117: (

a) where a party has a history of dissipation of assets, that is, unable to handle money ...; (

b) where the respondent is likely to leave the jurisdiction and become, in effect, an absconding debtor; (

c) where the respondent has, in the past, refused to honour a support obligation, whether it came by court order or contract or hasrefused to provide support at all, ... conduct in disregard of obligations as a father and husband;... husband also deserting wife andchildren;;); (

d) where the respondent has a poor employment history or has indicated that he will leave his employment..., payor spouse had noincome, savings or prospect of employment;... payor spouse also had an extravagant life-style and had been uncooperative withpayee in the past; (

e) where the respondent is out of the jurisdiction at the time of hearing but has assets in Ontario capable of forming the basis of asecurity order; [and] (

f) where the respondent has declared that he will not pay an eventual support order... (Citations omitted) In my view, Mr. Hodgson has refused unilaterally to honour support obligations, has a history of financial problems, includingissues with CRA and tax arrears, and has been uncooperative with Ms. Hodgson in the past by, for example, refusing to return her callsabout his failure to pay spousal support. Moreover, he has not set out any reason, such as an imminent sale of the property, for wantingthe lien removed from his property. Therefore, even if the Court has, as Mr. Hodgson argues and MEP disputes (which, for the following

reason, I do not have to decide) the jurisdiction to stay the enforcement of or to discharge the encumbrance on his title, in thesecircumstances I conclude that it would be inappropriate to do so. [paras 35 and 36] [emphasis added] [35] Another helpful survey is found in REQ v GJK, 2019 BCSC 1116 (Kelleher J.) affd Quinton v Kehler, 2020 BCCA 254(excerpts below from BCSC decision), focusing on security in the form of insurance on the payor’s life: The court has held that security for support obligations should only be ordered “on the basis of evidence showing them to be necessarydue to factors such as the recipient’s ‘extremely necessitous circumstances’ or the payor’s ill-health”: Sarro v.

Sarro, 2011 BCSC1010 at para. 50. More recently, the court has articulated a more flexible approach to this issue. In Kooner v. Kooner, 2015 BCSC 1880, Madam JusticeBruce held that evidence of delinquency is not required for the court to make an order under s. 170(

e) of the FLA. However, there mustbe a basis in the evidence for such an order: [45] In my view, the court may make an order under s. 170(

e) of the Family Law Act even if there is no evidence of any delinquencyregarding the payment of child support. However, there must be a reasonable connection between Mr. Kooner’s obligations under the Actto support the child and such an order before the court may exercise its discretion to make an order under s. 170(e). The court mustconsider best interests of the child but there must be a rationale for such an order based on the evidence before the court.

Relevant factors include whether the payor has complied with court orders in the past, whether the payor is presently in arrears, andthe payor’s health: D.P.R. v. L.L.R., 2015 BCSC 2317 at paras. 68-69, 159; E.D.A. v. M.A.A., 2014 BCSC 1084 at paras. 90, 125, 135;Buck v. Buck, 2013 BCSC 449 at paras. 6, 8, 42; McIntosh v. McIntosh, 2007 BCSC 1331 at paras. 100-102; Milligan v. Milligan, 2001 BCSC 1059 at paras. 74, 189; Greenwood v. Greenwood (1998), (BC SC), 37 R.F.L. (4th) 422 (B.C.S.C.) at para. 45;Kemp v. Kemp, 2018 BCSC 381 at para. 62; Sarro at para. 50; R.A.C. v. V.L.C., 2009 BCSC 1417 at para. 42.

The court has ordered the payor to maintain a life insurance policy and name the child or spouse as the sole beneficiary in cases wherethe payor had not complied with support obligations in the past or was in arrears: D.P.R. at paras. 68-69, 159; E.D.A. at paras. 90,125, 135; Buck at paras. 6, 8; McIntosh at paras. 100-102; Milligan at paras. 74, 189; Kooner at paras. 46-47; K.A.P. v. K.A.M.P., 2012BCSC 811. However, security is not necessarily required in those circumstances. In Pearce, the payor had failed to comply with theinterim spousal and child support order and was in arrears.

The court stated that these were relevant considerations but was nonethelesssatisfied that the child support obligations were a priority to the payor and that the actions of the Family MaintenanceEnforcement Program were adequate to ensure that payments were made (paras. 47-49). The court has declined to order security through a life insurance policy when the payor has a record of complying with his or hersupport obligations: K.R. v. J.D., 2017 BCSC 182 at paras. 60-61, aff’d 2018 BCCA 232;M.S. v. M.M. at para. 396; H.P. v. C.T.P.,2014 BCSC 2024 at para. 190; Greenwood at para. 45.

The age of the children and the importance of the payor’s contribution to their financial well-being may also be relevantconsiderations: K.A.P. at para. 54. Finally, the recipient spouse’s own circumstances may be relevant. In Kemp, the court declined to order that support be secured by alife insurance policy on the basis that the payor was in good health and the recipient spouse was capable of supporting herself withoutthe support payments.

The court held at para. 62, “[i]f the [claimant] seeks the peace of mind that would come with coverage being inplace, she can purchase a policy on his life at her own expense. That is not a cost that should be borne by the respondent.” In this case it is noteworthy that there are no existing arrears; the respondent has complied with his support obligations in the past;and there is no evidence that he is in poor health. I agree with the claimant that the respondent does not have a lot of equity in his assets. However, that does not constitute a sufficientbasis for the order sought.

The application for life insurance is dismissed. [paras 141-150] [emphasis added] [36] The following factors echo or expand on the factors above: • payor “in arrears of support from the commencement of [the] application and throughout the entire trial”, “[non-disclosing]relevant financial information” and “[failing] to send proper cheques to the [support-administration system]”: Riel v Holland, (ONCA) (paras 38 and 39); • “accumulating arrears and refusing to pay them”: Adama v Adama, 2019 BCSC 772 (para 155) (Young J.); • “[payor] fail[ing] to comply with the earlier order for support ... [and] wilfully unemployed” and “as the [payor’s]whereabouts are presently unknown, he is likely beyond the reach of provincial enforcement mechanisms”: Bennett v Bennett,2022 BCSC 1702 (paras 68 and 69) (Baker J.); • “[i]f ... probability that [the payor] would pass away owing substantial arrears in child support to the [recipient] ... leaving thechildren in a needy situation, perhaps I would consider some type of order for security”: R.A.C. v.

V.L.C., 2009 BCSC 1417 (para 142)(Griffin J.); • “[the payor] failed to comply with his monthly obligations under the present order for three years, although he had increasedincome for much of that time. He made no payments until funds were available from the matrimonial home sale proceeds in trust. It is reasonable to infer there is a risk of similar behaviour in the future”: Lee v Chung, 2011 BCSC 404 (para 55) (Smith J.); • “ ... [payor] is content to allow a [particular] property to fall into waste” [when recipient has a maintenance order she is entitled

to enforce]: D’Atri v Gonzalez , 2017 BCSC 1244 (paras 24 and 25 ) (Young J.) • “ ... [g]iven the respondent’s [poor] compliance track record for payment of court ordered support [failure to pay support per a 2019 order] and the age of the children [20 in university and 16], I agree such an order [holding $25,00 of the payor’s share of family property held in trust as security] is appropriate and so order: Kim v Sharp , 2021 BCSC 1428 (para 167 ) (Harvey J.); and • “ ... serious concerns regarding [the payor’s] apparent disposition of income-producing assets following the filing of this family claim and lack of financial disclosure despite a court order requiring same ... serious and significant concerns that [the payor] may be attempting to avoid his responsibilities under [that] claim ...”: CG v MG , 2023 BCSC 1355 (paras 72-74 ) (Walkem J.). [ 37 ] In this case, the father’s non-disclosure of income increases in 2011-2015 and failure to pay income-appropriate support in those years raise legitimate concerns of non- or under-payment of the arrears here.

Accordingly, security is warranted here. [ 38 ] However, I conclude that no court order for security is necessary. [ 39 ] The key assets (as noted) are the father’s two properties, his liquid assets, his shareholder-loan receivable and (possibly, if material value is ultimately shown) his 50 per cent stake in the noted corporation. [ 40 ] As I see it, adequate security for the mother’s arrears claim can be achieved by her registering the arrears order against title to the two properties, per s. 23 MEA :

(1) A maintenance order may be registered in any land titles office and the registration, so long as the order remains in force, (

a) binds all legal and equitable interests of the debtor in any land registered in the debtor’s name at the time of or after registration of the maintenance order, and (

b) operates on those interests in the same manner and with the same effect as registration of a charge by the debtor on the land of the debtor. [ 41 ] This assumes that the father continues to own both properties or at least one and that his net equity the property or properties has not changed since 2023 ABKB 364 or has not dropped below $102,012 between the two properties if both are still owned or below that figure for the remaining property, if only one remains. [ 42 ] If the father does not have at least $102,012 in equity as between the two properties (or in the one property remaining, as applicable), or if he no longer owns either property, I invite the mother to make further submissions about appropriate security and, after giving the father an opportunity to respond, I will decide what other security should be directed or identified here. [ 43 ] In any case, the mother also has the option of registering the arrears order at the Personal Property Registry.

Per ss 21(2) MEA , the order so registered would be deemed to be a writ of enforcement and thus open the door to enforcement against his personal (non-land) assets, per the Civil Enforcement Act . It would also have priority over other writs of enforcement: ss. 21(3) MEA . (For implicit confirmation that child-support amounts are a form of unsecured debt pursuable by writ of enforcement, see Wagner v Wagner , 2014 ABCA 428 at paras 43 and 44 .) [ 44 ] The mother does not have to register with MEP to so register the order (i.e. at Land Titles or PPR), per ss. 21 and 23. [ 45 ] Per para 23(1)(

a) MEA , an LTO- registered order has priority over subsequently registered encumbrances. [ 46 ] Per para. 136(1)(d.1) of the Bankruptcy and Insolvency Act , “periodic [support amounts] accrued in the year before the date of bankruptcy [if applicable] that are payable, plus any lump sum amount that is payable ” are a preferred claim. That would include the lump-sum-payable arrears here: see Re Muzlera , 2011 ONSC 4531 (Reg. Mills) (paras 13-18 ). [ 47 ] As well, per para 178(1)(

c) BIA , support arrears are not dischargeable in bankruptcy. [ 48 ] In my view, given s. 23 MEA , registering the arrears order on title against the two properties would give the mother the same security position as directing the father to grant her a charge against those lands for the arrears. [ 49 ] Hence no court order for security here. VI. Conclusion [ 50 ] For the above reasons, the entire arrears are immediately due and payable, with sufficient security available by registering the arrears order at Land Titles against the noted properties. Heard by way of written submissions received between June 28 and December 7, 2023. Decided at Edmonton, Alberta on January 25, 2024.

M. J. Lema J.C.K.B.A. Appearances: Erik L. Bruveris Stillman LLP Barristers and Solicitors For the applicant mother Elsa G. Rice, KC Barrister & Solicitor For the respondent father