Chernykh v Chernykh, 2023 ABKB 359

Court of King’s Bench of Alberta Citation: Chernykh v Chernykh, 2023 ABKB 359 Date: 20230615 Docket: 4801 169912 Registry: Calgary Between: Elvira Yegorovna Chernykh Applicant - and - Yevgeniy Nikolayevich Chernykh Respondent _______________________________________________________ Endorsement of the Honourable Justice M.H. Hollins _______________________________________________________ [ 1 ] The parties separated in 2012 and were divorced by Divorce Judgment and Corollary Relief Order dated May 19, 2017 (the Order).

They have one daughter, Yelizaveta Yevgenyevna Chernykh (Liza) who is 15 years old. [ 2 ] In the Order, the Mother’s Guideline Income was set at $56,958 and Father’s at $42,598, resulting in a payment of s.3 support from the Father of $339 per month plus $82 towards allowed s.7 expenses of art classes, skiing and swimming. [ 3 ] The Mother now seeks to vary the Divorce Judgment to impute income to the Father of $78,558 with a resulting increase in s.3 support to $751 per month [1] and an increase in his required contribution to new s.7 expenses claimed for Liza. The Father was

served with notice of the application but filed nothing in response and did not appear. Mother’s counsel advised that he sent an email on the day of the application asking the Mother to consent to an adjournment and was advised by her counsel that no consent to an adjournment would be given. This matter was scheduled in Family Docket Court and the Father was provided with notice of this date.

Accordingly, the matter proceeded. [ 4 ] Although we proceeded in his absence, I had a few questions for the Mother, which she answered by way of a Supplemental Affidavit. [ 5 ] This variation application requires that there be a material change in the circumstances of the Child since the granting of the 2019 Order. I agree with the Mother that Liza’s advancing age, her enrollment in private school and the expansion of her interests constitute a material change (without agreeing that all of those interests will be compensable s.7 expenses).

I also note that, to the extent that the Father has not disclosed his income in accordance with both the Order and statutory requirements to do so, adjustments retroactively may not require a material change beyond the imputation of income based on what we do know about his employment. [ 6 ] On the issue of imputation of income, the Father has never once complied with his obligation to provide annual financial disclosure as required by paragraph 8 of the Divorce Judgment.

Further, he ignored the Mother’s Notice to Disclose and the resulting Order of this Court dated November 5, 2022. [ 7 ] Particularly where a payor is self-employed, as believed to be the case here, the annual exchange of financial information is imperative to ensuring that fair and appropriate child support is being paid for the benefit of the child. The Mother is asking for imputation of income of $78,558 based on the average of three occupational profiles provided to the Court.

In the absence of any evidence to the contrary, I am prepared to impute his income at $78,558 effective the date of the filing of this Application, so beginning on October 1, 2022. [ 8 ] As a result of that direction, his s.3 child support obligation increases to $679 per month beginning October 1, 2022 and his arrears (which have been accumulating since the granting of the Divorce) will be increased by an amount to be calculated by the Maintenance Enforcement Program. [ 9 ] In respect of the s.7 claims made by the Mother, she deposes that the Father agreed that Liza should attend private school and in fact, she acknowledges that he paid $2,500 towards the 2021/2022 tuition.

The total of that tuition was $18,930 for that year and $8,188 for 2022/2023. The Mother asks for a 50% contribution to the tuition costs, less the $2,500 paid. [ 10 ] She also asks for a 50% from the Father for guitar lessons, ski passes, volleyball fees and the Child’s cell phone. Of these, she acknowledges that the Father agreed to contribute only to the ski passes. Calculated on a pro-rated monthly basis, the claimed s.7 expenses above tuition total $390.

In addition, the Mother has various one-time purchases she wants the Father to contribute to. [ 11 ] Given that the Mother has somewhat unilaterally incurred these expenses and that we do not actually know the ability of the Father to contribute (albeit because of his own non-disclosure), I am directing that his s.7 contribution be set at $150 per month plus 50% of tuition (base tuition only, no additional fees, uniform or clothing costs).The s.7 expenses allowed are therefore the tuition as aforesaid and the $150 per month will cover guitar lessons, ski passes, volleyball fees and cell phone charges.

This increase in s.7 expenses will also result in additional arrears, to be calculated by the Maintenance Enforcement Program. [ 12 ] In conclusion, the s.3 child support is increased to $751 per month effective October 1, 2022. The s.7 monthly amount is increased to $150 per month effective October 1, 2022.

In addition, the Father is obligated to pay 50% of the 2021/2022 tuition less what he has already paid ($9,465 - $2,500 = $6,965 ) plus 50% of the 2022/2023 tuition ( $4,094 ). [ 13 ] The Applicant is granted a portion of the solicitor-client costs of the application in the amount of $3,000 in view of the Respondents persistent failure to disclose or to appear to explain that failure. [ 14 ] The arrears, once calculated, will be payable at an amount of $50 per month on top of the ongoing s.3 and s.7 child support set out above. Counsel for the Mother should provide an Order reflecting these directions.

Heard on the 13 th day of December, 2022. Dated at the City of Calgary, Alberta this 15 th day of June, 2023 M.H. Hollins J.C.K.B.A. Appearances:

Brianne Beckie for the Applicant For himself, did not appear Self Represented