C.W.T. v. K.A.T., (2015) 610 A.R. 157 (QB)

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 26, 2015
• Citations: (2015), 610 A.R. 157 (QB);2015 ABQB 68

C.W.T. v. K.A.T. (2015), 610 A.R. 157 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.070

C.W.T. (plaintiff) v. K.A.T. (defendant)

C.W.T. (plaintiff/respondent) v. C.O. (defendant/applicant)

(4803 158791; FL03 17538; 2015 ABQB 68)

Indexed As: C.W.T. v. K.A.T.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Read, J.

January 29, 2015.

Summary:

The father and C.O. cohabited from 2002 until their separation in 2005. They had one child (M.). The father married K.A.T. in 2008 and divorced her in 2011. They had two children (K. and J.). The father was required to pay child support of $508/month for M. and $1,487/month for K. and J. He applied to vary the total amount of child support he was required to pay for K. and J. based on a claim of undue hardship.

The Alberta Court of Queen's Bench, in a decision reported at (2013), 574 A.R. 354, granted the application. Effective April 2014, the father was ordered to pay child support of $70/month for K. and J. The father now applied to reduce the amount of child support payable for M. based on a claim of undue hardship. K.A.T. applied to increase the amount of child support payable for K. and J. based on a change in circumstances. The applications were heard concurrently.

The Alberta Court of Queen's Bench, in a decision reported at (2014), 601 A.R. 391, dismissed the father's application and allowed K.A.T.'s application (the November 2014 decision). The father was ordered to pay the full amount of s. 3 child support for K. and J. The father appealed and applied for a stay of the November 2014 decision. He also applied for reconsideration of the November 2014 decision. K.A.T. applied to have the action set down for trial and to have the father prevented from making further interlocutory applications until trial.

The Alberta Court of Queen's Bench denied the application for a stay. The reconsideration application was allowed to the limited extent of correcting some minor errors. The court ordered that the action be set down for trial as early in 2016 as could be scheduled. The mother's application to have the father prevented from making further interlocutory applications was allowed in part.

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.

Family Law - Topic 2227

Maintenance of spouses and children - Interim relief - Stay of interim order pending appeal - [See Practice - Topic 8952 ].

Family Law - Topic 4195

Divorce - Practice - Judgments and orders - Variation of - [See Practice - Topic 5780 ].

Practice - Topic 5201.1

Trials - General - Order for expedited trial - The parties' divorce proceedings commenced in November 2011 - Numerous applications followed - In February 2013, the father was ordered to pay s. 3 child support for the parties' two children - In October 2013, his child support obligations were reduced following an undue hardship application - In November 2014, the father was again ordered to pay the full amount of s. 3 child support - The father appealed - The mother applied to set the action down for trial - The father argued that the matter should not be set down for trial until after his appeal was decided - The Alberta Court of Queen's Bench ordered that the action be set down for trial as early in 2016 as could be scheduled - The parties had become antagonistic to the point that even discussion, let alone resolution, had become impossible - Alternate dispute resolution would be ineffective and cause more delay and animosity - Any decision made by the Court of Appeal was unlikely to affect the evidence that would need to be called at trial - Issues of child support would need to be addressed again at trial and circumstances might have changed by then - See paragraphs 7 to 17.

Practice - Topic 5260

Trials - General - Trial of preliminary issues - General principles (incl. when available or appropriate) - The parties' divorce proceedings commenced in November 2011 - Numerous applications followed - In February 2013, the father was ordered to pay s. 3 child support for the parties' two children - In October 2013, his child support obligations were reduced following an undue hardship application - In November 2014, the father was again ordered to pay the full amount of s. 3 child support - The mother applied for an order preventing the father from making further interlocutory applications before trial - The Alberta Court of Queen's Bench held that the father's request for the ability to make an application for 2015 summer vacation access was a reasonable exception to the over-all ban in making further pre-trial applications - Other than that and "any applications contemplated by these reasons to be made in the course of readying for trial, neither party shall bring any interlocutory application before trial, except with leave of the case management judge on a change in circumstances." - See paragraphs 18 and 19.

Practice - Topic 5780

Judgments and orders - Interlocutory or interim orders or judgments - Stay, revocation or variation of - The parties' divorce proceedings commenced in November 2011 - Numerous applications followed - In February 2013, the father was ordered to pay s. 3 child support for the parties' two children - In October 2013, his child support obligations were reduced following an undue hardship application - In November 2014, the father was again ordered to pay the full amount of s. 3 child support - The father applied for reconsideration of the November 2014 decision (Alberta Rules of Court, rule 9.13) - The Alberta Court of Queen's Bench found that two errors in the November 2014 decision required consideration - First, the father's 2013 tax refund was found to be $9,000 when it was actually only $1,516 - This mistake led the application judge to find that the father's maintenance arrears should not be considered in the hardship claim because he could have paid them off with the refund - Second, the father's monthly take home pay was miscalculated, which caused the application judge to conclude that the father had more funds left over after payment of child support than he actually did - Notwithstanding these errors, the court declined to change the substance of the November 2014 decision - The father still could have paid off arrears had he chosen to do so - The October 2013 undue hardship decision gave him a considerable financial benefit, and also resulted in the parties' children being treated very differently from the father's child from a prior relationship - See paragraphs 24 to 67.

Practice - Topic 6102

Judgments and orders - Amendment, rescission and variation of judgments and orders - Correction of errors - [See Practice - Topic 5780 ].

Practice - Topic 6107

Judgments and orders - Amendment, rescission and variation of judgments and orders - Amendment or variation - Circumstances permitting - [See Practice - Topic 5780 ].

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - The parties' divorce proceedings commenced in November 2011 - Numerous applications followed - In February 2013, the father was ordered to pay s. 3 child support for the parties' two children - In October 2013, his child support obligations were reduced following an undue hardship application - In November 2014, the father was again ordered to pay the full amount of s. 3 child support - The father appealed and applied for a stay of the November 2014 decision - The Alberta Court of Queen's Bench denied the application for a stay - The father failed to establish irreparable harm - He stated that he would have to sell his house and be unable to feed his children, but there was no evidence that his financial situation was so dire that this would occur in the short time between now and his appeal - He also failed to establish that the balance of convenience favoured a stay - He was not the children's primary parent - The mother had to provide for the children, including daycare fees and other s. 7 expenses, and her financial situation had worsened over the past year - In addition, the appeal had been fast tracked and could be heard quickly - See paragraphs 20 to 23.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes irreparable harm - [See Practice - Topic 8952 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See Practice - Topic 8952 ].

Practice - Topic 8966

Appeals - Stay of proceedings pending appeal - Appeals from interlocutory orders - [See Practice - Topic 8952 ].

Cases Noticed:

Evans v. Sports Corp. (2011), 523 A.R. 80; 2011 ABQB 478, refd to. [para. 24].

Paniccia Estate et al. v. Toal (2012), 521 A.R. 73; 2012 ABQB 11, affd. (2012), 539 A.R. 349; 561 W.A.C. 349; 2012 ABCA 397, refd to. [para. 26].

Lewis Estates Communities Inc. et al. v. Brownlee LLP, [2013] A.R. Uned. 823; 2013 ABQB 731, refd to. [para. 39].

Hanmore v. Hanmore (2000), 255 A.R. 163; 220 W.A.C. 163; 2000 ABCA 57, refd to. [para. 64].

Counsel:

C.W.T. was self-represented;

Megan L. Dawson (McCuaig Desrochers LLP), for the defendant.

These applications were heard on January 26, 2015, before Read, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on January 29, 2015.