C.A.G. v. S.G., 2012 ABQB 529

• Judge: Jones, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 05, 2012
• Citations: 2012 ABQB 529;(2012), 548 A.R. 226 (QB)

C.A.G. v. S.G. (2012), 548 A.R. 226 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. OC.034

C.A.G. also known as C.A.R. (plaintiff) v. S.G. (defendant)

(4801 114904; 2012 ABQB 529)

Indexed As: C.A.G. v. S.G.

Alberta Court of Queen's Bench

Judicial District of Calgary

Jones, J.

September 21, 2012.

Summary:

A father applied for a reduction or termination of his spousal support obligations, and spousal support and child support arrears. He also sought an adjustment of his ongoing child support obligations and cancellation of maintenance enforcement fees and penalties. He asserted that his ability to work had been compromised by a deterioration of his physical and emotional condition since a car accident in 1999.

The Alberta Court of Queen's Bench did not impute additional income to the father. His ongoing child support obligations would be based on the income reported on Line 150 of his 2012 tax return. The court stayed indefinitely the child support arrears, extinguished the spousal support arrears, and terminated his ongoing spousal support obligations. The court did not cancel the maintenance and enforcement fees and penalties.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Estoppel - Topic 394

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In family law cases - [See Family Law - Topic 4050 ].

Family Law - Topic 2202

Maintenance of wives and children - General principles - Destitute person unable to work - The parties married in 1999 and separated in 2001 - They had two children - The father sustained injuries in a 1999 car accident - He applied for variation of his ongoing child support obligations, asserting that his ability to work had been compromised by the deterioration of his physical and emotional condition since the accident - The mother opposed the application - She filed several medical reports and letters that had been written between 2000 and 2003 which stated that the father was not disabled - The father filed a letter from his physician (Dr. Koss) dated March 2011, which stated that he had developed degenerative disk disease and facet joint arthritis related to the accident - The Alberta Court of Queen's Bench found that the father was permanently disabled and unable to engage in any meaningful employment - Dr. Koss had been actively involved in addressing the father's health issues arising from the accident for over a decade - His letter was the most recent expression of medical opinion available - Dr. Koss had taken into account the views of other physicians who had assessed the father's situation - The father's ongoing child support obligations would be based on the income reported on Line 150 of his 2012 tax return - No income would be imputed - See paragraphs 21 to 33.

Family Law - Topic 2202

Maintenance of wives and children - General principles - Destitute person unable to work - [See Family Law - Topic 4039 and Family Law - Topic 4050 ].

Family Law - Topic 2324

Maintenance of wives and children - Maintenance of wives - Circumstances where order refused - [See Family Law - Topic 4039 ].

Family Law - Topic 2360.1

Maintenance of wives and children - Maintenance of children - Variation of award or agreement - [See first Family Law - Topic 2202 ].

Family Law - Topic 2383

Maintenance of wives and children - Variation of - Jurisdiction - [See Family Law - Topic 4050 ].

Family Law - Topic 2384

Maintenance of wives and children - Variation of - Grounds (incl. changed circumstances) - [See first Family Law - Topic 2202 ].

Family Law - Topic 2441

Maintenance of wives and children - Evidence - General - [See first Family Law - Topic 2202 ].

Family Law - Topic 2523

Maintenance of wives and children - Enforcement - Orders - Arrears of maintenance - [See Family Law - Topic 4050 ].

Family Law - Topic 2526

Maintenance of wives and children - Enforcement - Orders - Termination or variation - [See Family Law - Topic 4050 ].

Family Law - Topic 2526.1

Maintenance of wives and children - Enforcement - Orders - Suspension of enforcement - [See Family Law - Topic 4050 ].

Family Law - Topic 4002.4

Divorce - Corollary relief - Maintenance and awards - Circumstances when refused - [See Family Law - Topic 4039 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Variation of periodic payments or lump sum award - [See first Family Law - Topic 2202 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See first Family Law - Topic 2202 ].

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance and awards - Spousal support - Suspension or termination of - The parties married in August 1999 - They separated in October 2000, reconciled briefly, and separated permanently in September 2001 - The husband worked only briefly during the marriage - The wife obtained several part-time jobs and asserted that she was responsible for all household and living expenses - The husband refused to contribute - An October 2000 order required the husband to pay spousal support of $1,000/month - He applied for a reduction or termination of his spousal support obligations - He asserted that his ability to work had been compromised by the deterioration of his physical and emotional condition since a 1999 car accident - His current income was $10,000 and consisted almost entirely of social assistance - The wife now had vision problems that forced her to live on social assistance - She worked at low-paying jobs and depended on her parents for financial support - The Alberta Court of Queen's Bench terminated the husband's ongoing spousal support obligations - It had been a short marriage - The wife did not suffer a loss of earning capacity because of the role she assumed during the marriage - The husband's unwillingness or inability to work had forced her to maintain gainful employment - There was no economic interdependency as the wife had never been able to rely on the husband financially - The previous order had been granted early in the husband's recovery process when there was an expectation of improvement - His condition had actually deteriorated - He was permanently disabled and unable to engage in any meaningful employment - His income fell well below the $20,000 threshold which was normally considered the lower limit for an order of continuing spousal support under the Guidelines - See paragraphs 34 to 48.

Family Law - Topic 4040

Divorce - Corollary relief - Maintenance and awards - Evidence and proof - [See first Family Law - Topic 2202 ].

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Child support guidelines - Changed circumstances - [See first Family Law - Topic 2202 ].

Family Law - Topic 4047

Divorce - Corollary relief - Maintenance - Enforcement - Jurisdiction - [See Family Law - Topic 4050 ].

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - The parties married in 1999, separated in October 2000, reconciled briefly, and separated permanently in September 2001 - They had two children - A 2000 order required the father to pay $1,000/month spousal support and $327/month child support - He did not pay - In 2003 and 2004, his applications for a reduction in his arrears were dismissed - He currently owed arrears of $176,469 - He applied for a reduction or termination of the arrears - He asserted that his ability to work had been compromised by the deterioration of his physical and emotional condition since a 1999 car accident - The mother argued that the 2003 and 2004 orders rendered the issue res judicata - The Alberta Court of Queen's Bench found that the father was permanently disabled and unable to engage in any meaningful employment - He could not pay his child support arrears and would not be able to pay them at any time in the future - Res judicata did not apply - Section 17 of the Divorce Act gave courts broad authority to reopen matters where there had been a change in circumstances - The full scope of the father's continuing deterioration was not known when the 2003 and 2004 orders were made - Medical evidence since then indicated that he had no realistic prospect of returning to work - This new evidence could be relied on as the basis for variation - The court ordered an indefinite stay of the child support arrears - The best interests of the children demanded that the father remain contingently liable - The previous spousal support which led to the accumulation of arrears were rescinded and the arrears were extinguished - See paragraphs 49 to 125.

Family Law - Topic 4051

Divorce - Corollary relief - Maintenance - Enforcement - Suspension of enforcement - [See Family Law - Topic 4050 ].

Cases Noticed:

Haisman v. Haisman (1994), 157 A.R. 47; 77 W.A.C. 47; 116 D.L.R.(4th) 671 (C.A.), refd to. [para. 49].

Bullock v. Bullock, [2005] A.R. Uned. 867; 2005 ABQB 844, refd to. [para. 54].

Barnes v. Barnes, [1986] N.W.T.R. 376 (S.C.), refd to. [para. 62].

Haisman v. Haisman (1993), 137 A.R. 245; 7 Alta. L.R.(3d) 157, refd to. [para. 63].

McDonald v. McDonald (1997), 213 A.R. 213; 154 D.L.R.(4th) 524 (Q.B.), dist. [para. 65].

Gessner v. Gessner (1990), 82 Sask.R. 223; 24 R.F.L.(3d) 308 (Q.B.), refd to. [para. 69].

Director of Maintenance Enforcement (N.S.) v. Coolen (2009), 278 N.S.R.(2d) 57; 886 A.P.R. 57; 2009 NSCA 22, dist. [para. 71].

Saulis v. Nicholas - See A.V.S. v. J.T.N.

A.V.S. v. J.T.N. (2007), 322 N.B.R.(2d) 352; 829 A.P.R. 352; 2007 NBQB 261 (Fam. Div.), dist. [para. 73].

Weinstein et al. v. Weinstein (1997), 92 B.C.A.C. 143; 150 W.A.C. 143; 38 B.C.L.R.(3d) 103 (C.A.), refd to. [para. 79].

Smith v. Smith (2002), 207 N.S.R.(2d) 5; 649 A.P.R. 5; 2002 NSCA 78, refd to. [para. 80].

Ballentine v. Ballentine, [2001] O.T.C. Uned. A93; 22 R.F.L(5th) 1; 109 A.C.W.S.(3d) 129 (Sup. Ct.), affd. (2003), 173 O.A.C. 368; 228 D.L.R.(4th) 570; 65 O.R.(3d) 481 (C.A.), refd to. [para. 81].

McCowan v. McCowan (1995), 84 O.A.C. 125; 24 O.R.(3d) 707 (C.A.), not folld. [para. 84].

Canadian Imperial Bank of Commerce v. Whites Lake Services Ltd., Slaunwhite, Revels and Deal (1982), 56 N.S.R.(2d) 236; 117 A.P.R. 236; 32 C.P.C. 128 (Co. Ct.), refd to. [para. 84].

Kline, Re, [1924] 1 D.L.R. 295; 56 N.S.R. 389 (S.C.), refd to. [para. 84].

Cotter v. Cotter (1986), 13 O.A.C. 81; 53 O.R.(2d) 449; 25 D.L.R.(4th) 221 (C.A.), refd to. [para. 85].

Gill-Sager v. Sager (2003), 177 B.C.A.C. 155; 291 W.A.C. 155; 222 D.L.R.(4th) 595; 2003 BCCA 46, refd to. [para. 87].

Sylvester v. Sylvester, [2004] B.C.T.C. Uned. 523; 133 A.C.W.S.(3d) 833; 2004 BCSC 1145, refd to. [para. 89].

D.L.T. v. D.T.B., [2007] B.C.T.C. Uned. 97; 155 A.C.W.S.(3d) 365; 2007 BCSC 210, refd to. [para. 89].

DeBruyn v. DeBruyn, [2005] B.C.T.C. Uned. 527; 141 A.C.W.S.(3d) 783; 2005 BCSC 1185, refd to. [para. 89].

Tierney-Hynes v. Hynes (2005), 200 O.A.C. 251; 75 O.R.(3d) 737; 256 D.L.R.(4th) 193 (C.A.), refd to. [para. 93].

Woito v. Lajoie, [2012] A.R. Uned. 230; 2012 ABQB 103, dist. [para. 96].

Ewing v. Ewing (2007), 404 A.R. 10; 394 W.A.C. 10; 2007 ABCA 72, refd to. [para. 100].

Ploughman v. Ploughman (1989), 78 Nfld. & P.E.I.R. 170; 244 A.P.R. 170; 18 A.C.W.S.(3d) 193 (Nfld. S.C.), refd to. [para. 101].

Nanrhe (Panesar) v. Nanrhe, [2005] A.R. Uned. 806; 2005 ABQB 722, refd to. [para. 102].

DiFrancesco v. Couto (2001), 155 O.A.C. 32; 56 O.R.(3d) 363; 207 D.L.R.(4th) 106 (C.A.), refd to. [para. 103].

Lefebvre v. Strilchuck, [2007] O.T.C. Uned. 363; 281 D.L.R.(4th) 539; 155 A.C.W.S.(3d) 1177 (Sup. Ct.), refd to. [para. 105].

Ibrahim v. Habte - see Habte v. Habte.

Habte v. Habte, [2006] B.C.T.C. Uned. 414; 2006 BCSC 840, refd to. [para. 106].

M.L. v. R.S.E., [2006] A.R. Uned. 96; 2006 ABCA 178, refd to. [para. 119].

Burak v. Burak, [2012] A.R. Uned. 793; 2012 ABQB 452, refd to. [para. 120].

Kowalski v. Kowalski, [2009] A.R. Uned. 388; 2009 ABQB 294, refd to. [para. 121].

Scott v. Scott, [1972] 2 W.W.R. 456 (N.W.T.), refd to. [para. 122].

Counsel:

Tamasine Davies, Q.C. (Soby Boyden Lenz LLP), for the plaintiff;

S.G. was self-represented;

Michelle S. Lee (Alberta Justice).

This application was heard on June 5, 2012, before Jones, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on September 21, 2012.