Sherlow v. Zubko, (1999) 247 A.R. 66 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 20, 1999
• Citations: (1999), 247 A.R. 66 (QB);1999 ABQB 435;[2000] 1 WWR 699;247 AR 66;76 Alta LR (3d) 202;50 RFL (4th) 160;[1999] AJ No 644 (QL)

Sherlow v. Zubko (1999), 247 A.R. 66 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. JN.024

Jacqueline Margaret Sherlow (petitioner/applicant) v. Ronald Graham Zubko (respondent/defendant)

(Action No. 4803-68202)

Indexed As: Sherlow v. Zubko

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

June 1, 1999.

Summary:

A 1989 order required the husband to pay the wife child support for the children of the marriage. Such support was to continue until each child attained the age of 18 years, married or became completely self-support­ing for a period of at least three consecutive months, whichever event occurred first. In addition, the parties were to share equally the cost of all medical, dental and optical expenses for the children of the marriage which were not covered by any insurance plan. In 1998, the last two children of the marriage attained the age of 18 years. The husband ceased making payments to the wife but made payments to the children directly. The children were still in school and living with the wife. The wife applied for a varia­tion of the 1989 order. She did not consider that the direct payments to the children satisfied the husband's obligation under the 1989 order.

The Alberta Court of Queen's Bench allowed the application and ordered the husband to pay child support to the wife.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - In 1998, the last two children of the marriage attained the age of 18 years - The husband ceased making child support payments to the wife as required in a 1989 order but made payments to the children directly - The children were still in school and living with the wife - In July 1998, the wife applied for a variation of the 1989 order - She sought, among others, retroactive maintenance to May 1, 1997, date when the Federal Child Support Guidelines came into force - The Alberta Court of Queen's Bench held that, absent exceptional cir­cumstances, retroactive maintenance should not be ordered for the period previous to July 1998 - Also, the amounts paid directly to the children should be taken into account in the calculation of the retroactive maintenance payable - See paragraphs 41 to 47.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - In 1998, the last two children of the marriage attained the age of 18 years - The husband ceased making child support payments to the wife as required in a 1989 order but made payments to the children directly - The children were still in school and living with the wife - The wife applied for a variation of the 1989 order - The Alberta Court of Queen's Bench allowed the application, holding that the two children were still children of the marriage - The court ordered the husband to pay child support to the wife - See paragraphs 13 to 22.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation of income - A 1989 order required the husband to pay the wife child support for the children of the marriage - In addition, the parties were to share equally the cost of all medical, dental and optical expenses for the children of the marriage which were not covered by any insurance plan - The parties subsequently remarried - In 1997, the wife separated from her second husband - The second husband was ordered to pay the wife monies for mortgage and mental/dental insurance - In 1998, the wife applied for a variation of the 1989 order - At issue was whether the monies paid to the wife by the second husband were to be considered in calculating her Guideline income with respect to s. 7 expenses - The Alberta Court of Queen's Bench found it inappro­priate to impute into the wife's Guideline income the payments made by the second husband - See paragraphs 31 to 32.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation of income - The custodial wife sought child support for two children alleged to still be children of the marriage - The husband had a construction business - He also held a family farm that provided employment for a son and his wife - The farm operated at a loss - For income tax purposes, the husband deducted this loss from the income he received from the construction business - The Alberta Court of Queen's Bench held that for Child Support Guideline purposes, the farm loss claim should be imputed to the husband's income - See paragraphs 33 to 40.

Cases Noticed:

Whitton v. Whitton (1989), 34 O.A.C. 31; 21 R.F.L.(3d) 261 (C.A.), refd to. [para. 17].

Baker v. Baker (1994), 147 A.R. 227; 2 R.F.L.(4th) 147 (Q.B.), refd to. [para. 18].

Peterson v. Peterson, [1997] A.R. Uned. 329 (Q.B.), refd to. [para. 18].

Bates v. Bates (1995), 165 A.R. 71; 89 W.A.C. 71; 10 R.F.L.(4th) 261 (C.A.), refd to. [para. 19].

Tapson v. Tapson (1969), 2 R.F.L. 305 (Ont. C.A.), refd to. [para. 20].

Collins v. Collins (1998), 221 A.R. 111 (Q.B.), refd to. [para. 20].

Van de Pol v. Van de Pol (1995), 179 A.R. 221 (Q.B.), refd to. [para. 20].

McKinnon v. McKinnon (1998), 217 A.R. 342 (Q.B.), refd to. [para. 20].

Graves v. Graves, [1998] B.C.T.C. Uned. F82 (S.C.), refd to. [para. 20].

Purser v. Purser, [1993] B.C.J. No. 2230 (S.C.), refd to. [para. 20].

Fair v. Jones, [1999] N.W.T.J. No. 17 (S.C.), refd to. [para. 21].

Francis v. Baker (1998), 107 O.A.C. 161; 34 R.F.L.(4th) 317 (C.A.), affd. (1999), 246 N.R. 45; 125 O.A.C. 201 (S.C.C.), consd. [para. 24].

Blair v. Blair (1998), 34 R.F.L.(4th) 370 (Ont. Gen. Div.), refd to. [para. 25].

Wilkins v. Wilkins (1998), 204 N.B.R.(2d) 70; 520 A.P.R. 70 (Q.B. Fam. Div.), refd to. [para. 25].

Holizki v. Reeves (1997), 161 Sask.R. 76; 34 R.F.L.(4th) 414 (Q.B. Fam. Div.), refd to. [para. 26].

Glen v. Glen, [1997] B.C.T.C. Uned. H70; 34 R.F.L.(4th) 105 (S.C.), refd to. [para. 26].

Carnall v. Carnall (1998), 165 Sask.R. 305; 37 R.F.L.(4th) 392 (Q.B. Fam. Div.), refd to. [para. 26].

Palmer v. Palmer, [1998] B.C.T.C. Uned. C65 (S.C.), refd to. [para. 26].

Gamache v. Gamache (1999), 241 A.R. 388 (Q.B.), consd. [para. 29].

Clark v. Kubek (1998), 214 A.R. 43; 37 R.F.L.(4th) 244 (Q.B.), refd to. [para. 34].

Needham v. Needham, [1998] B.C.T.C. Uned. 104; 36 R.F.L.(4th) 395 (S.C.), refd to. [para. 35].

Vanderstoop v. Vanderstoop, [1998] A.R. Uned. 380 (Q.B.), refd to. [para. 36].

Hill v. Hill, [1999] Sask.R. Uned. 42 (Q.B.), refd to. [para. 36].

Stokes v. Stokes (1998), 167 Sask.R. 107 (Q.B. Fam. Div.), refd to. [para. 37].

Seidlikoski v. Hall (1998), 167 Sask.R. 56; 40 R.F.L.(4th) 427 (Q.B. Fam. Div.), refd to. [para. 37].

McDonald v. Gross (1998), 167 Sask.R. 97 (Q.B. Fam. Div.), refd to. [para. 37].

Fry v. Hendrickson (1998), 166 Sask.R. 305 (Q.B. Fam. Div.), refd to. [para. 37].

Deneiko v. Deneiko (1998), 166 Sask.R. 144 (Q.B. Fam. Div.), refd to. [para. 37].

Wilson v. Wilson (1998), 165 Sask.R. 241 (Q.B.), refd to. [para. 38].

Adams v. Loov (1998), 222 A.R. 334 (Q.B.), refd to. [para. 39].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261; 17 R.F.L.(4th) 88 (C.A.), refd to. [para. 42].

Macbeth v. Macbeth (1998), 214 A.R. 104; 36 R.F.L.(4th) 390 (Q.B.), refd to. [para. 42].

Lobo v. Lobo (1999), 240 A.R. 257 (Q.B.), refd to. [para. 42].

Wesolowski v. Wesolowski, [1999] A.R. Uned. 43 (C.A.), refd to. [para. 44].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 2(1) [para. 14].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 3(2) [para. 23]; Schedule III, sect. 3(1), sect. 3(2) [para. 32].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.)

Counsel:

Susan B. Lawson, for the pe­titioner/appli­cant;

Gail L. Edwards, for the respon­dent/de­fendant.

This application was heard on April 20, 1999, by Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Ed­monton, who delivered the following de­cision on June 1, 1999.