Aalbers v Aalbers, 2016 SKCA 1

Court of Appeal for Saskatchewan Docket: CACV2649 Citation: Aalbers v Aalbers , 2016 SKCA 1 Date: 2015-12-09 Between: Johnny William Aalbers Appellant (Respondent) And Jacqueline Nicole Aalbers Respondent (Petitioner) Before: Caldwell, Herauf and Whitmore JJ.A. Disposition: Leave to adduce fresh evidence denied, appeal adjourned sine die (orally) Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf On Appeal From: 2014 SKQB 387 , Regina Heard: 9 December 2015 Counsel: W. Timothy Stodalka for the Appellant R.

Bradley Hunter, Q.C. and Carmen Khuu for the Respondent Whitmore J.A. I. Introduction [ 1 ] The appellant, Johnny William Aalbers, appealed the decision of a judge of the Court of Queen’s Bench in Chambers dismissing his application to vary his child and spousal support obligations. This Court exercised its discretion and declined to hear the appeal as Mr. Aalbers’s support obligations have not been honoured since 2010 and are in arrears in the approximate amount of $160,000. The Court also dismissed Mr.

Aalbers’s application to adduce fresh evidence that disclosed that in November of 2015 a child of the marriage had left the respondent’s care and was now living with Mr. Aalbers. This child had been the last child living with the respondent, and, according to Mr. Aalbers, all three daughters now reside with him. This Court, in dismissing Mr. Aalbers’s applications, advised that it would provide written reasons for its decision. This judgment shall constitute those reasons. II. Background [ 2 ] The parties separated in 2006 after 19 years of marriage and have been involved in litigation ever since.

Sandomirksy J. presided over a trial in April of 2010 and issued a decision dated May 14, 2010, relating to parenting and a decision dated September 2, 2010, concerning property and support. [ 3 ] The custody, access, and support orders related to only three of the five children of the marriage. The three daughters were placed into the sole custody of the respondent with specified access by Mr. Aalbers ( Aalbers v Aalbers , 2010 SKQB 172 , 355 Sask R 212). [ 4 ] The trial judge found that Mr. Aalbers had attempted to deceive the court with respect to his income and attributed income to Mr.

Aalbers of $115,000, confirming an earlier 2006 finding. Based on that income, Mr. Aalbers was ordered to pay the respondent $2,034 per month as child support and $1,500 per month in spousal support both commencing on September 1, 2010 ( Aalbers v Aalbers , 2010 SKQB 318 , 360 Sask R 26 [ Trial Decision ]). [ 5 ] On appeal by Mr. Aalbers, this Court dismissed his appeal regarding the primary residence of the children, and child and spousal support ( Aalbers v Aalbers , 2013 SKCA 64 , 417 Sask R 69 [ Appeal Decision ]). In addition, this Court found that the imputation of Mr. Aalbers’s income was not in error.

In short, the appeal was in large part dismissed. Mr. Aalbers then applied to Court of Queen’s Bench to vary custody, child support and spousal support ( Aalbers v Aalbers , 2014 SKQB 387 [ QB Chambers Decision ]). [ 6 ] That application was dismissed for the most part. The current appeal deals with the Chambers judge’s decision regarding Mr. Aalbers’s application to vary. [ 7 ] The material filed in this Court indicated that Mr. Aalbers has not made any payment whatsoever on his child and spousal support obligations since the Trial Decision in September of 2010.

Upon the QB Chambers Decision coming before this Court, this Court indicated its concern over Mr. Aalbers’s non-compliance with support orders and invited submissions as to whether the Court should exercise its discretion to decline to hear the matter in light of Mr. Aalbers’s refusal to pay support. The matter was then adjourned to enable the parties to provide written submissions. [ 8 ] Upon the return date, Mr. Aalbers sought to introduce fresh evidence showing that since November of 2015 his three daughters were living with him. Thus, there are two issues before us to determine:

(

a) Should the fresh evidence be admitted? (

b) Should the Court exercise its discretion and decline to hear Mr. Aalbers’s appeal? III. Fresh Evidence [9] In order for the evidence to be admitted, it must satisfy the test for admission of fresh evidence. The Supreme Courtidentified the test for admission of fresh evidence test in R v Palmer, (SCC), [1980] 1 SCR 759 at 760 as follows:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [10] While the first branch of the test is satisfied: namely, the evidence was not available at the trial as, at the time of theChambers application, the child was not living with Mr. Aalbers but was residing with the respondent. However, the second branch ofthe test—that the evidence must be relevant—is not satisfied.

The evidence that one of the children has moved from the respondent’sresidence does not have any bearing on the issue of the arrears of spousal and child support at this time; nor does it bear on whether theappeal should be heard; nor does it bear on the issues of the appeal proper—namely, whether the trial judge erred in his decision. [11] With respect to the third and fourth branches of the test, while the evidence may well be credible and has not beencontradicted, it could not reasonably be taken to have affected the result of the Chambers judge’s decision, as the child in question wasresiding with the respondent until after the decision currently under appeal. [12] Neither does it have any effect on whether this Court should exercise its jurisdiction and decline to hear the appeal. [13] Mr.

Aalbers’s remedy is not to adduce fresh evidence, but to make an application to vary the child support before the Court ofQueen’s Bench. The application to adduce fresh evidence is dismissed with costs, which we fix at $1,000. IV. Should the Appeal be Heard [14] Turning now to the issue of whether the appeal should be heard. [15] Mr. Aalbers made no effort during the period that this matter was adjourned to show that he, at the very least, acknowledgedthe existence of the court orders for child and spousal support.

Rather, he submitted that there had been no application to find him incontempt for not paying his child and spousal support obligations. Further, he submits that the children are now all living with him andthat fact should convince the Court to hear his appeal of the QB Chambers Decision.

He referred to case authority where courts haveproceeded to hear appeals where the appellant has been found to be in contempt in payment of court-ordered support and submits thatthis is a case where the appeal should be heard. [16] The Supreme Court considered a similar situation in Dickie v Dickie, 2007 SCC 8, [2007] 1 SCR 346 [Dickie]. In that case,the trial judge found Dr. Dickie to be in contempt of court for failing to comply with orders requiring him to provide an irrevocable letterof credit to secure his support obligations and to provide security for costs.

He appealed the finding of contempt and his former wifeasked the Ontario Court of Appeal to decline to hear his application on the grounds that he continued to ignore the support orders, whichwere the basis for the finding of contempt. [17] The Ontario Court of Appeal dismissed Ms. Dickie’s motion and held the fact that Dr. Dickie was challenging the jurisdictionof the court to find him in contempt was reason to hear the application. Laskin J.A. dissented, holding that the Court had a discretion torefuse to hear Dr. Dickie’s appeal and, on the basis of Dr.

Dickie’s refusal to honour the support obligations, the Court should haveexercised that discretion (Dickie v Dickie (2006), (ON CA), 206 OAC 257 (CA) at para 66). Laskin J.A. also held thatif the court was correct in entertaining the appeal, he would have dismissed Dr. Dickie’s appeal (at para 125). [18] Upon appeal, the Supreme Court said the following: [6] In our view, the Court of Appeal had the authority to refuse to entertain Dr.

Dickie’s appeal and, had it exercised its discretion asproposed by Laskin J.A. and for the reasons he gave, we would have found no basis to interfere with the result. [19] Thus, it is clear this Court has the authority to decline to hear the matter. The question is whether the Court should so exerciseits discretion in the circumstances of this case. [20] Mr. Aalbers submits that Dickie can be distinguished because Dr. Dickie was found to be living in luxury in the Bahamaswhile not paying child or spousal support. Mr.

Aalbers maintains that he is not living in luxury and is disputing his imputed income andrelated obligations for support. He further submits that the fact that his income has been imputed differs from the other cases whereincome was not imputed. [21] Mr. Aalbers fails to understand that in 2010 the trial judge imputed income to him because he found Mr. Aalbers was

attempting to deceive the court about his true income ( Trial Decision ) . When he appealed the trial decision to the Court of Appeal, this Court found that the imputation of his income was not in error ( Appeal Decision ). He then applied to vary his support obligations, almost from the date of the trial judgment, and the Chambers judge found no material change in circumstances ( QB Chambers Decision at para 53). In short, Mr.

Aalbers’s income was reviewed numerous times and, in spite of his attempts to prove otherwise, the courts have found the imputation to be proper. [ 22 ] In spite of the Court of Queen’s Bench finding it necessary to impute income to Mr. Aalbers, he continues to flout the court order requiring him to pay his support obligations and alleges he cannot afford to make those payments. Yet, his own evidence reflects that he has paid approximately $500,000 in legal fees in the ongoing disputes with his former wife. This is not to say that Mr.

Aalbers is not entitled to dispute these matters, it is just to say that someone who spends that amount of money for legal fees – and, in addition, purchases new farm equipment – cannot claim poverty when it comes to support obligations. Indeed it can reasonably be inferred that he has simply decided not to pay support.

In any event, the arrears have reached unreasonable amounts. [ 23 ] In Hadkinson v Hadkinson , [1952] 2 All ER 567 at 574–575 , Lord Denning said the following: It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy.

It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance. … Applying this principle, I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed. [ 24 ] This must be one of the most flagrant cases of disregard for court orders for child and spousal support, and, frankly, is an affront to the Court of Queen’s Bench.

While Mr. Aalbers continues to spend his financial resources on litigation and farming, his children and the respondent have been deprived of that to which they are legally entitled. By his actions, Mr. Aalbers has impeded the course of justice in this case. [ 25 ] This is an appropriate case for this Court to exercise its discretion to refuse to entertain this appeal based on the record showing continued disobedience of a court order. This Court will not hear this matter until all arrears of child and spousal support and any court-ordered costs against Mr.

Aalbers have been paid in full. [ 26 ] In the event the arrears and costs have not been paid in full within one year, the Registrar shall place the matter before a panel of this Court for determination as to whether the appeal should stand dismissed. In the interim, this matter is adjourned sine die and may be brought back upon 14 days of notice after satisfactory proof that all arrears for support both child and spousal – along with all court- ordered costs – have been paid in full. [ 27 ] Mr. Aalbers shall pay the costs of this adjournment, which are fixed at $1,500, for a total costs award of $2,500.