Kohut v. Kohut, 2015 ABQB 48

• Judge: Phillips, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 19, 2014
• Citations: 2015 ABQB 48;(2015), 611 A.R. 74 (QB)

Kohut v. Kohut (2015), 611 A.R. 74 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. FE.019

Marla May Kohut (plaintiff/respondent) v. Michael George Kohut (defendant/applicant)

(4801 129636; 2015 ABQB 48)

Indexed As: Kohut v. Kohut

Alberta Court of Queen's Bench

Judicial District of Calgary

Phillips, J.

January 16, 2015.

Summary:

The parties were married in 1992 and separated in 2006. They had three children. Under the parties' divorce contract, the father was required to pay the table amount of child support based on his annual income beginning in January 2010. An April 2012 consent order provided for the appointment of a Parenting Coordinator who was granted decision-making authority over, inter alia, child support, in the event of a disagreement between the parties. A replacement Parenting Coordinator was appointed by a January 2014 court order. The father applied to vary child support, submitting that the full table amount was no longer appropriate due to a change in circumstances. At issue was whether the court or the Parenting Coordinator had jurisdiction to decide child support issues.

The Alberta Court of Queen's Bench stayed the father's application, finding that the Parenting Coordinator had jurisdiction to determine the appropriate amount of child support.

Arbitration - Topic 102

Right to arbitration - What matters arbitrable - [See Family Law - Topic 4018 ].

Arbitration - Topic 161

Agreement to arbitrate - General (incl. what constitutes) - [See Family Law - Topic 4018 ].

Arbitration - Topic 2504

Stay of proceedings - Arbitration clause - Enforcement of - [See Family Law - Topic 4018 ].

Arbitration - Topic 3581

The arbitrator - Powers - General - [See Family Law - Topic 4018 ].

Family Law - Topic 2252

Maintenance of spouses and children - Jurisdiction - Consent orders - [See Family Law - Topic 4018 ].

Family Law - Topic 2360.1

Maintenance of spouses and children - Maintenance of children - Variation of award or agreement - [See Family Law - Topic 4018 ].

Family Law - Topic 2383

Maintenance of spouses and children - Variation of - Jurisdiction - [See Family Law - Topic 4018 ].

Family Law - Topic 3999

Divorce - Corollary relief - General - Mediation - [See Family Law - Topic 4018 ].

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance awards - Variation of - Jurisdiction - Under the parties' divorce contract, the father was required to pay the full table amount of child support based on his annual income beginning in January 2010 - An April 2012 consent order provided for the appointment of a Parenting Coordinator as "sole Arbitrator to decide by way of Final Decision all outstanding issues", including decision-making authority over child support in the event of a disagreement between the parties - A replacement Parenting Coordinator (Fong) was appointed by a January 2014 court order - The father applied for a court order varying child support, submitting that the full table amount was no longer appropriate due to a change in circumstances - He argued that Fong's jurisdiction was limited to the mechanical calculation of annual variations in child support, and did not extend to determining whether or not table support was appropriate as this was a fundamental question of fact and law that a court should decide - The Alberta Court of Queen's Bench stayed the father's application, finding that Fong had jurisdiction to determine the appropriate amount of child support - The Parenting Coordinator's powers set out in the April 2012 and January 2014 orders were not limited or narrowly defined - He was given decision-making authority over child support without qualification - Regardless of the parties' past practice in basing child support on the full table amount, their divorce contract provided for the proper application of the Guidelines as a whole, which were not limited to the tables or the mechanical calculation of support - The father could not avoid his contractual obligation to participate in the mediation and arbitration process - If he felt that Fong was unqualified to determine the issues, then he had to challenge Fong's qualifications pursuant to the process set out in the Arbitration Act.

Cases Noticed:

Mazepa v. Embree (2014), 588 A.R. 288; 626 W.A.C. 288; 2014 ABCA 438, refd to. [para. 32].

Marchese v. Marchese (2007), 219 O.A.C. 257; 2007 CarswellOnt 248 (C.A.), refd to. [para. 34].

Janelieunas v. Janelieunas, 2010 CarswellOnt 10840 (Sup. Ct.), refd to. [para. 35].

Scheidt v. Scheidt (2014), 566 A.R. 303; 597 W.A.C. 303; 2014 ABCA 24, refd to. [para. 38].

Ritchie v. Ritchie, [2014] A.R. Uned. 258; 2014 ABQB 219, refd to. [para. 39].

Troisi v. Gillen, 2013 ONCJ 677, refd to. [para. 42].

Counsel:

Laurie E. Allen (Allen Hyrniuk), for the applicant;

Jeffrey D. Wise (Wise Scheible Barkauskas), for the respondent.

This application was heard on November 19, 2014, before Phillips, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on January 16, 2015.