Strand v. Strand, (1999) 246 A.R. 70 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 23, 1999
• Citations: (1999), 246 A.R. 70 (QB)

Strand v. Strand (1999), 246 A.R. 70 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MY.062

Michael Daniel Strand (plaintiff) v. Anna Johanna Strand (defendant)

(Action No. 9703 12430)

Indexed As: Strand v. Strand

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

May 6, 1999.

Summary:

A father paid $800 monthly child support for the two children of the marriage pursuant to a settlement agreement reached shortly before the Federal Child Support Guidelines came into effect. The father sought to vary child support in accordance with the Guidelines. The mother asked for lump sum child support.

The Alberta Court of Queen's Bench denied the father's application. The court also declined to award a lump sum support order, but charged the father's real property in order to secure payment of periodic sup­port.

Family Law - Topic 4006.1

Divorce - Corollary relief - Maintenance awards - To children - Effect of agree­ments - A father paid $800 monthly child support for the two children of the mar­riage pursuant to a settlement agreement - The agreement, negotiated shortly before the Federal Child Support Guidelines came into effect, was made in anticipation of the Guidelines and with the assistance of legal counsel - The father was in arrears - He sought to vary support in accordance with the Guidelines - The Alberta Court of Queen's Bench dismissed the application - While the court would usually comply with a request to bring an existing support obligation within the Guidelines, it was inappropriate to do so where the parties had deliberately agreed to avoid the Guidelines as part of a comprehensive settlement of their matrimonial affairs - It would be unfair to allow a party to uni­laterally renegotiate part of the agreement -However, the court ordered that child support be secured against the father's real property - See paragraphs 20 to 31.

Family Law - Topic 4007

Divorce - Corollary relief - Maintenance awards - Order securing payment of - Amendments to the Divorce Act removed the reference to lump sum awards as a separate category of award from periodic awards - Instead, reference to lump sum awards was inserted in s. 11 of the Federal Child Support Guidelines - Similarly, the provision allowing a court to order a par­ent to secure or pay or secure and pay was removed from the Act and inserted in s. 12 of the Guidelines - The Alberta Court of Queen's Bench stated that the changes "do not signal a policy change as a difference of weight to be attached to the regulation" - See paragraphs 42 to 44.

Family Law - Topic 4007

Divorce - Corollary relief - Maintenance awards - Order securing payment of - [See Family Law - Topic 4006.1 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - [See Family Law - Topic 4007 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - [See Family Law - Topic 4006.1 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - While married, a father left his employment as a firefighter to become a self-employed Reiki master - His income fell from $50,000 to $10,000 -The Alberta Court of Queen's Bench held that the father was intentionally under­employed within the meaning of the Fed­eral Child Support Guidelines - Section 19(1) of the Guidelines allowed the court to impute income to a parent - Although certain case law suggested that a court could only impute income where it found intentional under-employment coupled with an intention to evade child support obligation, s. 19 itself did not establish such a restriction - Although the father did not quit his job to avoid paying support, he was underemployed and the court imputed to him $70,000 annual gross income - See paragraphs 34 to 41.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Support guidelines - Changed circum­stances - [See Family Law - Topic 4006.1 ].

Cases Noticed:

Zuk v. Zuk, [1998] A.R. Uned. 659 (C.A.), refd to. [para. 6].

Cane v. Newman (1998), 68 O.T.C. 237 (Gen. Div.), refd to. [para. 6].

Wang v. Wang (1998), 110 B.C.A.C. 302; 178 W.A.C. 302; 164 D.L.R.(4th) 146 (C.A.), refd to. [para. 6].

Garard v. Garard (1998), 111 B.C.A.C. 269; 181 W.A.C. 269; 164 D.L.R.(4th) 347 (C.A.), refd to. [para. 6].

Dergousoff v. Schille, [1999] S.J. No. 102 (C.A.), refd to. [para. 8].

Sherman v. Sherman (1999), 146 O.A.C. 342 (C.A.), refd to. [para. 6].

Glazier v. Glazier (1992), 5 O.R.(3d) 183; 36 R.F.L.(3d) 84 (Gen. Div.), refd to. [para. 8].

Zahr v. Zahr (1994), 161 A.R. 42; 24 Alta. L.R.(3d) 274 (Q.B.), refd to. [para. 6].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201; 15 R.F.L.(4th) 201, refd to. [para. 22].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 161, refd to. [para. 22].

Meloche v. Kales (1997), 43 O.T.C. 81; 35 O.R.(3d) 688 (Gen. Div.), refd to. [para. 22].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 11 [para. 42]; sect. 12 [para. 44]; sect. 19(1) [para. 36].

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

Counsel:

Elsa G. Rice, for the plaintiff;

Renee M.R. Cochard, for the defendant.

This matter was heard at Edmonton, Alberta, on February 23, 1999, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 6, 1999.