Savoia v. Savoia, (2009) 484 A.R. 220 (QB)

• Judge: Stevens, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 29, 2009
• Citations: (2009), 484 A.R. 220 (QB);2009 ABQB 516

Savoia v. Savoia (2009), 484 A.R. 220 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. SE.060

Marcello Domenic Savoia (plaintiff/respondent) v. Jennifer Christine Savoia (defendant/applicant)

(4801 127815; 2009 ABQB 516)

Indexed As: Savoia v. Savoia

Alberta Court of Queen's Bench

Judicial District of Calgary

Stevens, J.

September 9, 2009.

Summary:

Spouses married in 2004 and separated in 2007. There were two children of the marriage. The wife applied for an order severing corollary relief from the divorce judgment.

The Alberta Court of Queen's Bench dismissed the application.

Family Law - Topic 3877

Divorce - Defences or discretionary bars - When divorce refused - Lack of reasonable support arrangements for children - Section 11(1)(b) of the Divorce Act provided that "In a divorce proceeding, it is the duty of the court [...] to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made" - The Alberta Court of Queen's Bench held that "regard should be had to the following in determining whether the court has discharged its duty under s. 11(1)(b): i) counsel must realize that the court has a duty under s. 11(1)(b). Therefore, prior to making a request for severance of corollary issues, counsel should be satisfied that maintenance for the children is adequate [...]; ii) evidence of the parties' income is required. However, financial statements alone may be insufficient; evidence of the arrangements made for the support of any children of the marriage should be put before the court [...]; iii) quantum of support should not be in issue [...]; iv) information pertaining to any social assistance payments is an important factor in determining the income available for child support. Such income is to be considered in determining whether reasonable arrangements for child support have been made [...]; v) any agreement reached as to child support must be reasonable in the circumstances [...]; vi) in negotiating a reasonable arrangement for child support, the parties must have regard to the Guidelines, as well as other relevant factors in terms of the circumstances of the children of the marriage [...]; vii) evidence as to whether reasonable arrangements for child support have been made should be fact based, as opposed to testimony reflecting subjective opinion [...]; viii) evidence as to the reasonableness of an arrangement need not be extensive; it needs to enable to the court to satisfy itself pursuant to s. 11(1)(b) [...]; and ix) in certain limited circumstances, where it is impractical or inequitable to require an applicant to obtain financial information from a spouse with a view to establishing child support arrangements, a divorce may nonetheless be granted" - See paragraphs 10 to 32.

Family Law - Topic 3877

Divorce - Defences or discretionary bars - When divorce refused - Lack of reasonable support arrangements for children - Spouses married in 2004 and separated in 2007 - There were two children of the marriage - The wife applied for an order severing corollary relief from the divorce judgment - The Alberta Court of Queen's Bench dismissed the application - Prior to severing corollary relief from the divorce judgment, the court had to discharge the duty placed upon it under s. 11(1)(b) of the Divorce Act - The issue was whether adequate evidence had been provided to satisfy the court that reasonable arrangements had been made for child support - There was insufficient evidence to satisfy the requirements of s. 11(1)(b) - The husband's employment and financial evidence was included in his January 10, 2008 affidavit - This was approximately 20 months out of date - Information for the remainder of 2008 and for 2009 was required - The wife's current financial information was lacking altogether - The only evidence available pertained to her work history in 2008 - There was no information as to her employment in 2009 - What was clear was that she planned to be unemployed for approximately one year following the birth of her child - Information on her current income was required - There was no evidence as to the amount of social assistance received or whether she received any financial support from her current fiancé - Specifically, any employment insurance (E.I.) or social assistance payments had to be disclosed - Moreover, the wife's argument consisted almost entirely of her subjective opinion that the husband had a good income and was able to provide reasonable support for the children - This was insufficient - There was no evidence as to the husband's current income (the last update was in 2008) - Nor was there any evidence as to his expenses - The wife's assertion as to the husband's ability to provide support, coupled with incomplete financials, would not satisfy the court that a reasonable arrangement for child care had been made - See paragraphs 33 to 39.

Family Law - Topic 4124

Divorce - Practice - General - Severance of issues - [See second Family Law - Topic 3877 ].

Cases Noticed:

Tomilson v. Tomilson (1992), 12 C.P.C.(3d) 8 (Ont. Gen. Div.), refd to. [para. 13].

Roberts v. Roberts, [2007] B.C.T.C. Uned. 112; 36 R.F.L.(6th) 111; 2007 BCSC 236, refd to. [para. 15].

R.D.F. v. S.L.F. (1987), 34 D.L.R.(4th) 732 (B.C.S.C.), refd to. [para. 16].

L.A.K. v. G.N.K. (1987), 12 B.C.L.R.(2d) 9 (S.C.), refd to. [para. 18].

Bailly v. Bailly (1991), 126 A.R. 84 (Q.B.), refd to. [para. 19].

Money v. Money (1987), 45 Man.R.(2d) 308; 5 R.F.L.(3d) 375 (C.A.), refd to. [para. 21].

Willenborg v. Willenborg (2001), 214 Sask.R. 156; 2001 SKQB 521, refd to. [para. 23].

Graham v. Graham (1998), 60 O.T.C. 238; 78 A.C.W.S.(3d) 529 (Gen. Div.), refd to. [para. 25].

L.W.P. v. T.W.P. (1987), 12 B.C.L.R.(2d) 12 (S.C.), refd to. [para. 26].

Dumas v. Dumas, [1992] W.D.F.L. 1283; 134 A.R. 311 (Q.B.), refd to. [para. 27].

Kienitz v. Kienitz (1991), 79 Alta. L.R.(2d) 270 (Q.B.), refd to. [para. 28].

McMillan v. McMillan (1991), 126 A.R. 3 (Q.B.), refd to. [para. 29].

Zarebski v. Zarebski (1997), 33 O.T.C. 238; 29 R.F.L.(4th) 93 (Gen. Div.), refd to. [para. 31].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 11(1)(b) [para. 3].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (2nd Ed. 2006), p. 206 [para. 12].

Payne, Julien D., Divorce (4th Ed. 1996), pp. 87 [para. 10]; 89, 90 [para. 11].

Counsel:

Brian Warrington, for the applicant;

Jeffrey D. Wise, for the respondent.

This application was heard on July 29, 2009, by Stevens, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on September 9, 2009.