Zezel v Shwaga, 2023 ABKB 315

Court of King’s Bench of Alberta Citation: Zezel v Shwaga, 2023 ABKB 315 Date: 20230529 Docket: FL03 65600 Registry: Edmonton Between: Coty Zezel Plaintiff/Respondent - and - Crystal Shwaga Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Justice L.K. Harris _______________________________________________________ [ 1 ] Ms. Shwaga, represented by counsel, applies for a retroactive and ongoing variation of child support. Mr.

Zezel, who is currently self-represented, applies for shared parenting (and, by extension, a downward change in child support). [ 2 ] Parenting is currently governed by an Interim Without Prejudice Consent Parenting Order granted by Kiss J on October 20, 2021, which grants primary parenting to Ms. Shwaga, and parenting time to Mr. Zezel each weekend, when he is not working. [ 3 ] On August 24, 2022, Ms. Shwaga was granted an Interim Without Prejudice Child Support Order. Mr. Zezel was ordered to pay s 3 child support of $1,465 to Ms.

Shwaga, plus a proportionate share of s 7 expenses each month, commencing September 1, 2022.

The parties were also given leave to

schedule a Special Chambers Application to argue the issues of child support and parenting. On October 13, 2022, the parties entered into a Consent Procedural Order, setting filing deadlines for materials for the Special Chambers Application, which by that time had been scheduled for May 3, 2023. [ 4 ] There have been difficulties with Mr. Zezel’s compliance with his disclosure obligations and court-imposed deadlines to file his materials relating to these applications. Although there were copies of Mr.

Zezel’s application and affidavits on file, he had not filed a concise letter, nor had he provided complete, up-to-date disclosure. On May 3, 2023, Ms. Shwaga and her counsel appeared, ready to proceed. Mr. Zezel did not appear. Instead, he sent a family member to seek an adjournment as he was working up north and could not attend, and he wanted more time to replace his counsel who had withdrawn. [ 5 ] After considering Mr. Zezel’s request for an adjournment, I gave the following directions: (

a) The matter was adjourned to May 15th before me, peremptory upon Mr. Zezel; (

b) Mr. Zezel was to provide his financial disclosure no later than May 10 th ; and (

c) Mr. Zezel was to pay $400 in thrown-away costs to Ms. Shwaga forthwith. [ 6 ] When the parties appeared before me on May 15 th , I was advised that Mr. Zezel had provided some, but not all, of his financial records (which Ms. Shwaga was prepared to accept for the purposes of this application). He had not paid the costs. [ 7 ] I am prepared to consider the parties’ applications and provide a decision. I. Background [ 8 ] The parties were in a seven-year adult interdependent relationship and have two children who are currently 7 and 5 years of age. The parties separated on May 20, 2021. [ 9 ] Ms.

Shwaga has been unemployed since 2014 because of a medical condition. Her only source of income is social assistance. She has been the primary parent of the parties’ two children since their births. Mr. Zezel has worked outside the home, primarily as a blaster, doing shift work which requires him to spend two weeks in camp in the Northwest Territories, followed by two weeks at home. He says that when he was home from work, he was actively involved in the children’s care. [ 10 ] During their relationship, the parties and their children resided in Robb, Alberta. The relationship was turbulent in that Ms.

Shwaga has struggled with mental health issues from time to time and she admits that both parties struggled with addictions issues. Children’s Services has been involved in safety planning in the past, and Ms. Shwaga has spent some time in the Ponoka Hospital. Ms. Shwaga has been on medication for her mental health issues and has been the subject of a Community Treatment Order. However, she says that since separation she no longer abuses alcohol, drugs, or prescription medication. Mr. Zezel seems to agree that Ms.

Shwaga is doing much better recently, but he questions the status of her treatment, saying that she has displayed some symptoms which make him think that perhaps she is not pursuing her treatment as she should. [ 11 ] In mid-2021, Ms. Shwaga relocated to Camrose, Alberta with the two children after the parties’ home went into foreclosure. Mr. Zezel followed in July 2022. In September 2022, Mr. Zezel moved to Bawlf, Alberta, as he had begun a new relationship. That relationship ended and in December 2022, he moved back to Camrose. Ms. Shwaga states that Mr.

Zezel has a No-Contact Order against him arising from an incident in Bawlf involving his former partner. She also states that he has been charged with an impaired driving offence and has had his driver’s license suspended. Mr. Zezel has provided little evidence about what transpired in Bawlf, but in submissions, he does not dispute that he had been charged with a criminal offence arising from the Bawlf incident, is the subject of a No- Contact Order, and is awaiting trial, which is scheduled for June 2023.

He also does not dispute that his driver’s license was suspended pursuant to a Notice of Administrative Penalty under the Alberta Saferoads regime but says that his license has since been reinstated pending further review. [ 12 ] As I noted at the outset, Mr. Zezel did not file his Concise Letter as required by Part E of Family Law Practice Note 2. He explains that he is not a lawyer, and as he currently is without counsel, he did not understand what he needed to do.

However, he was represented by counsel when the parties consented to a Procedural Order in October 2022, which set deadlines for materials being filed, and so I do not accept that he was not aware of his obligations in that regard. [ 13 ] Mr. Zezel did provide affidavits with the assistance of his then-counsel setting out his evidence. He was also in attendance on May 15 th and made extensive submissions. As such, I am confident that Mr. Zezel has had the opportunity to put forward his information. Ms.

Shwaga was prepared to proceed and did not express any desire to adjourn because of any prejudice suffered due to Mr. Zezel’s failure to provide a concise letter. [ 14 ] Family Law PN2 permits a party to proceed without the defaulting party’s evidence or submissions, and I have determined that it is appropriate to do so in this case. II. Parenting [ 15 ] I will first address the issue of parenting as the determination of parenting will assist in establishing the issue of child support. Mr. Zezel argues that there should be shared parenting, because of Ms.

Shwaga’s past mental health struggles, saying he is concerned for the safety of the children. Ms. Shwaga strongly disagrees and says that parenting should remain as directed by Kiss J in her October 2021 Order, because Mr. Zezel is unreliable and unpredictable, and cannot offer a stable home environment.

[ 16 ] Ms. Shwaga states that the children are currently in school close to her home. As she is not working, she is available to care for them on a daily basis. [ 17 ] Ms. Shwaga concedes that she suffers from complex PTSD and both parties struggled with addictions issues during their relationship. She says that since separation she has “gotten clean” and no longer uses alcohol or drugs and does not abuse prescription medication. Children’s Services last visited her home in July 2022, following concerns being raised about her well-being, but after investigating, declined to open file for the family.

She disagrees that Mr. Zezel can assume shared parenting, expressing concerns over his ongoing alcohol use as evidenced by his NAP, his transience, his pending criminal charges arising from the Bawlf incident, his failure to consistently fulfill his parenting time when he is off work and his failure to make timely financial disclosure or child support payments. She points out that the children cannot take a bus to school from Mr. Zezel’s home and would need to be driven when they are with him. She argues that generally Mr.

Zezel has not demonstrated that he has the necessary stability, nor has he shown a commitment to ensuring stability for the children or to provide a home that is within the children’s best interests. [ 18 ] On the other hand, Mr. Zezel says that he now has a stable home in Camrose, suitable for the children (although in submissions, he raised concerns over the high rent and indicated that he may be moving again). He raises concerns about Ms. Shwaga’s mental health issues and her ability to parent, although the examples of incidents he gives in his affidavits occurred primarily before separation.

He raises concerns over certain aspects of Ms. Shwaga’s behavior, such as acting suspiciously and her house being in disarray and says this is evidence of her failure to engage in treatment. He expresses the fact that the children are happy when they see him, and they enjoy several activities together. He has not provided any evidence explaining how he is going to get the children to school and back should his license be suspended following the review.

He has not explained what will happen should the criminal proceedings arising from the Bawlf incident not go in his favor. [ 19 ] My determination of parenting is governed by s 18 of the Family Law Act , RSA 2003 c F-4.5 , which directs me to consider only the best interests of the children. In doing so, I must ensure the greatest possible protection of the children’s physical, psychological and emotional safety, and consider all the children’s needs and circumstances, which include the factors set out in s 18(2)(b).

Some of those factors are not relevant to these parties’ circumstances and so I will address only the relevant factors here. [ 20 ] The first factor to consider is the children’s physical, psychological and emotional safety, including the children’s need for stability. [ 21 ] Mr. Zezel has not demonstrated, on a balance of probabilities, that he can meet the children’s need for safety and stability. While I accept that he loves his children and wants to be involved in their lives, he has not demonstrated a consistent commitment to ensuring that they may enjoy a dependable, predictable, and stable home with him.

For example, he has frequently changed his residence and he has not provided any evidence that these changes were made with any consideration for the well-being of his children. He has admittedly pursued a lifestyle which has attracted the attention of law enforcement, and the consequences of that remain unknown at this time. While he denies that he has an addiction to alcohol his NAP seems to suggest otherwise. The evidence shows that Mr. Zezel has not committed to consistently engaging in parenting his two children on those weekends when he is home from work.

Although during submissions, he argued that he had good reasons to not take the children on certain weekends, those reasons (for example, not being able to drive to Camrose because his license was suspended) themselves do not establish his commitment to having his children’s best interests in mind at this time. His behavior, resulting in criminal charges and an NAP, leads me to conclude that Mr. Zezel’s reasons for missing his parenting time were entirely avoidable. [ 22 ] Mr.

Zezel’s recent legal difficulties, along with the fact that he has not provided any evidence of how he intends to deal with them, avoid such difficulties in the future and what would happen if he again has his license suspended or is convicted of the charge against him, lead me to conclude that the children cannot expect consistent, stable, or even safe, caregiving from their father at this time. The possibility that he could engage in further risky behavior while the children are in his care remains a distinct possibility. [ 23 ] Ms. Shwaga clearly has struggles of her own.

However, she has provided evidence that the children have had and continue to have a loving home with her, and that she is available to care for them consistently. She has sworn to the fact that she no longer consumes drugs or alcohol, and no longer abuses prescription medication. She has explained the nature of her mental health struggles. Although Mr. Zezel questions whether she is pursuing treatment, he has not provided direct evidence that Ms.

Shwaga currently poses a danger to the children or is not currently capable of parenting them appropriately. [ 24 ] Second, when it comes to the history of care for the children and plans for the children’s care and upbringing, neither party has provided much detail although Ms. Shwaga has indicated that the children’s school is close to her home. She also has provided some evidence regarding her arrangements for speech therapy for the children, ensuring that the children have their eyeglasses prescriptions filled and that they have school supplies. I have no such evidence from Mr. Zezel.

I find that the evidence supports Ms. Shwaga’s argument that she has been the children’s primary caregiver and continues that role and is primarily responsible for ensuring that the children’s medical and educational needs are met. On the other hand, Mr. Zezel has provided no similar evidence and as noted above, more concerning is the fact that he has not addressed what would happen should he again lose his driver’s license or should he be convicted of the charge against him. Ms. Shwaga has indeed been the primary parent for the children historically, and I conclude that even if parenting were shared, Ms.

Shwaga would remain primarily responsible for making all the arrangements for the children’s health care and schooling. [ 25 ] Third, I also conclude that the nature of the relationship between the children and each of their parents is likely quite different. Mr. Zezel is out of town 50% of the time. He also has missed some of his parenting time, and so, since separation, the children have only spent occasional periods when there is meaningful contact with their father. I do not doubt that the children enjoy seeing their father very much, but that contact on Mr.

Zezel’s own evidence seems to be limited to the occasional weekend in a hotel or Christmas holidays, rather than consistent daily parenting. Their mother has provided the majority of parenting, care and stability for the children. [ 26 ] The concerns Ms. Shwaga has raised, and Mr. Zezel’s admissions regarding the pending criminal and administrative

proceedings against him, cause me to conclude that he does not have the ability currently to engage in shared parenting. Those criminal and administrative proceedings also have a bearing on the children’s safety, as I am not confident that Mr. Zezel will avoid such behaviour in the future. Further, Mr. Zezel has not demonstrated a consistent commitment to assuming parenting during the weekends he is off work. [ 27 ] For these reasons, Mr. Zezel has not satisfied me that shared parenting is appropriate at this stage. Accordingly, parenting will remain as directed by Kiss J in her October 21, 2021, Order. III.

Child Support [ 28 ] Currently, Mr. Zezel is obligated to pay s 3 child support of $1,465 per month, plus his proportionate amount of s 7 expenses, based upon an annual salary of $100,490, pursuant to the Order of Dunlop J dated August 24, 2022. [ 29 ] Mr. Zezel has made some payments to Ms. Shwaga since separation, but generally those payments have been below the $1,465 ordered by Kiss J. and generally, not by the first of each month. [ 30 ] Ms. Shwaga applies for a retroactive and ongoing adjustment of child support based upon Mr.

Zezel’s actual annual income each year. [ 31 ] When a claim for retroactive adjustment to child support is made Colucci v Colucci, 2021 SCC 24 instructs me to first determine the period of retroactivity, which is calculated from the date of effective notice, up to three years prior to the date of formal notice. [ 32 ] Ms. Shwaga argues that the date of effective notice is August 23, 2021, when Mr. Zezel filed a Notice to Attend Family Docket, indicating that one of the issues to be determined was child support. [ 33 ] Alternatively, Ms.

Shwaga filed a Family Law Act Claim on August 8, 2022, in which she sought an Order for Child Support, which constitutes her formal notice to Mr. Zezel of her intentions. [ 34 ] Regardless of whether one calculates the period of retroactivity from the date of formal notice or from the date of effective notice, it is apparent that Mr.

Zezel has had notice that child support has been in issue between the parties since shortly after the date of separation. [ 35 ] Further, in assessing the four factors required by DBS v SRG, 2006 SCC 37 : - I find that there has been no significant delay in pursuing the issue of child support on the part of Ms. Shwaga; - Mr. Zezel has not complied with his financial disclosure obligations, which amounts to blameworthy conduct on his part; - The children have primarily been in Ms. Shwaga’s care and thus, are dependent upon her to meet their needs.

She earns less than $20,000 per year and as such, the children’s needs are acute and include the need to attend speech therapy; and - Mr. Zezel has not satisfied me that he will suffer a hardship by granting a retroactive award (to be addressed further below). [ 36 ] Therefore, I am satisfied that Ms. Shwaga is entitled to a retroactive adjustment of child support back to the date of separation. [ 37 ] I will now turn to calculating the amount of child support owed. [ 38 ] Mr.

Zezel has now provided some additional financial information comprised of his T4 statements, some paystubs and a spreadsheet showing camp allowance payments. [ 39 ] His T4s show annual income in 2021 as $121,365 and in 2022 as $133,153. [ 40 ] Mr. Zezel’s paystubs show varying amounts of regular pay and overtime over each pay period for 2023 to date. The last paystub for the period ending April 1, 2023, shows a year-to-date gross pay of $43,296.99. If those earnings are extrapolated over the remainder of 2023, then a reasonable expectation of Mr. Zezel’s income for 2023 would be approximately $173,000.

However, Mr. Zezel argues that his overtime pay is sporadic and therefore should not be used to calculate annual income. [ 41 ] Ms. Shwaga says that Mr. Zezel also earns a per diem for his time spent in camp and urges that the per diem ought to be added to his total income, relying upon Wanchuk v Wanchuk , 2023 ABKB 121 . [ 42 ] In reviewing Mr. Zezel’s paystubs, I have concluded that without evidence suggesting otherwise, the per diem, or camp allowance, is already included in his total income.

This is a different situation than the one being considered in Wanchuk , because in Wanchuk , the per diem, or “living out allowance” was established in evidence to be something extra paid to the father above his total income to compensate him for the expenses he incurred for working away from home. There is no such evidence here as to the purpose of Mr. Zezel’s camp allowance and unlike in Wanchuk , the camp allowance is included in Mr. Zezel’s total income reported on his paystubs. Accordingly, I decline to add in anything extra to Mr.

Zezel’s total income to reflect what he was paid for camp allowance. [ 43 ] I also agree with Mr. Zezel that his overtime pay fluctuates greatly from pay period to pay period and simply extrapolating his total amount earned by the end of March to calculate his annual income for 2023 is likely not going to result in an accurate assessment of his income for this year. Thus, I find that at this point, the best estimate of Mr. Zezel’s annual income for 2023 is the amount of his 2022 income, or $133,153.

[ 44 ] Ms. Shwaga argues that Mr. Zezel should pay the appropriate Guideline amount for s 3 child support. Mr. Zezel argues that he should pay the $1,465 ordered by Dunlop J, which is somewhat less. He argues impecuniosity, or undue hardship. Mr. Zezel says that he is paying joint bills accumulated by the couple during their relationship, including a personal bank loan, CRA arrears, and an amount owed as a result of the foreclosure on the family home and accordingly, he cannot afford to pay a higher guideline amount.

He has not provided any specific evidence of these debts through bank statements or the number and amount of payments he is making. [ 45 ] He also says that he is paying child support of $650 per month for another child from an earlier relationship. He has not produced any materials showing exactly what his obligations are, but I note that his paystubs show that Mr. Zezel’s wages are garnished each pay period in the amount of $325, which Mr. Zezel says is for his child support. He acknowledges that he has been in arrears in the past but has caught up. [ 46 ] Mr.

Zezel has not provided sufficient evidence for me to conclude that an order requiring him to pay the Guideline amount based upon his reported annual income would cause him undue hardship. His oral submissions that he is paying multiple joint debts and his statements in his affidavits to that effect do not meet the required standard, because they do not allow me to consider the amount of debt being paid on a monthly basis as compared to his income and his standard of living. Based on the information provided, I cannot conclude that Mr.

Zezel has a responsibility for an unusually high level of debts reasonably incurred or has unusually high expenses in relation to exercising his access time. While he does have a legal duty to support his oldest child, I cannot conclude from the evidence that this reasonably causes him undue hardship. These are all circumstances which I might consider pursuant to s 10 of the Alberta Child Support Guidelines , A/R 147/2005, if there was sufficient evidence. However, there is not, and I decline to make the finding that the Guideline payment for the two children of the relationship would cause Mr.

Zezel undue hardship. [ 47 ] Accordingly, I direct that Mr. Zezel pay s 3 child support in accordance with his reported incomes for 2021 and 2022 for each of those years. The 2022 income will be used as a basis for calculating Mr. Zezel’s ongoing obligation to pay child support for 2023 in the amount of $1,913 per month, with an adjustment to be made in 2024 once Mr. Zezel’s actual annual income for 2023 becomes known, either through his final paystub for the year, his T4, or his 2023 income tax return. Mr. Zezel will receive credit for the amounts he has paid to Ms.

Shwaga since separation from time to time, as calculated below. [ 48 ] To summarize my findings regarding Mr. Zezel’s income and resulting child support arrears owed: Annual Income Monthly Guideline Amount Total child support owed Paid by Mr. Zezel Arrears owed by Mr. Zezel 2021 [1] $121,365 $1,754 $12,278 $3,195 $9,113 2022 $133,153 $1,913 $22,956 $6,737 $16,219 2023 $133,153 [2] $1,913 $9,565 [3] $2,014 $7,551 [ 49 ] I must address Ms. Shwaga’s argument that some of the amounts she says have been paid by Mr. Zezel were paid for her cell phone bill, not s 3 child support.

I do not have sufficient evidence that the parties mutually agreed that Mr. Zezel would pay for her cell phone bill in addition to s 3 child support and accordingly, I conclude that all payments made by Mr. Zezel since separation will be credited towards his child support obligations. The amounts set out above are calculated using Ms. Shwaga’s statements as to what she has been paid, as well as the amounts set out in Exhibit “B” to Mr.

Zezel’s Affidavit sworn March 1, 2023. [ 50 ] Finally, the parties will be responsible for their proportionate share of s 7 expenses, to include the children’s speech therapy. [ 51 ] The parties will exchange income information no later than April 30 th each year, and Mr. Zezel’s monthly child support payments will be adjusted to the Guideline amount appropriate for his income for the previous year. IV. Costs [ 52 ] Ms. Shwaga seeks enhanced costs of this Application of $5,500 given Mr. Zezel’s failure to comply with his disclosure and child support obligations. [ 53 ] Mr.

Zezel has had costs assessed against him due to his nonattendance in court on May 3, 2023. He has not paid them. [ 54 ] Ms. Shwaga has been substantially successful in this Application. Even though my findings regarding Mr. Zezel’s income were not exactly what she argued in submissions, I have found that Mr. Zezel owes arrears for child support and his child support obligations are greater than what was ordered by Dunlop J. [ 55 ] Mr. Zezel’s failure to comply with his disclosure and child support obligations is a concern to this Court. I order that he pay enhanced costs of $3,000 plus reasonable disbursements.

Heard on the 15 th day of May, 2023. Dated on the 29 th day of May, 2023 at the City of Edmonton, Alberta

L.K. Harris J.C.K.B.A. Appearances: Mr. Zezel Self-Represented Litigant Andrew Wood Rand Law LLP for the Defendant/Applicant