Wagner v. Wagner,

• Judge: Brown,Hughes,McDonald
• Neutral Citation: 2014 ABCA 428
• Citation: 2014 ABCA 428,(2014), 588 A.R. 218,588 AR 218,(2014), 588 AR 218,588 A.R. 218
• Date: 01 December 2014
• Court: Court of Appeal (Alberta)

Wagner v. Wagner (2014), 588 A.R. 218; 626 W.A.C. 218 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. DE.081

Jeremy John Wagner (appellant/plaintiff) v. Diane Nicole Wagner (respondent/defendant)

(1401-0148-AC; 2014 ABCA 428)

Indexed As: Wagner v. Wagner

Alberta Court of Appeal

McDonald and Brown, JJ.A., and Hughes, J.(ad hoc)

December 12, 2014.

Summary:

An ex-wife sought to vary the child support provisions of a divorce judgment both prospectively and retroactively.

The Alberta Court of Queen's Bench imputed income to the ex-husband, set child support under the Child Support Guidelines and determined that he owed arrears. The court also ordered that the ex-wife could enforce any arrears through Agri-Capital Inc., a company wholly owned by the ex-husband's new spouse, from which he received a salary. Further, the ex-husband was ordered to surrender his passport to the court until all his child support arrears were repaid. The ex-husband appealed.

The Alberta Court of Appeal allowed the appeal. The chambers judge erred in ordering that the ex-wife could enforce child support arrears against Agri-Capital. The judge also lacked jurisdiction to require the ex-husband to surrender his passport. The court also varied the ex-husband's guideline imputed income for 2013 from $190,000 to $150,000.

Family Law - Topic 2536.2

Maintenance of wives and children - Enforcement - Orders - Liability of corporation - A chambers judge ordered that an ex-wife could enforce child support arrears through Agri-Capital Inc., a company wholly owned by the ex-husband's new spouse, from which he received a salary - The ex-husband appealed - The Alberta Court of Appeal allowed the appeal - "For the purposes of enforcing child support as a form of unsecured debt, the Civil Enforcement Act ... and its regulation form an exhaustive code that provides for writs of enforcement which may be issued only in respect of the property of an enforcement debtor. Here the enforcement debtor is the appellant, not Agri-Capital. Prima facie, then, the chambers judge lacked jurisdiction to order enforcement of a debt against Agri-Capital's property. While, in Goett v Goett ... this Court held on the facts that child support arrears could be enforced against the assets of a company 'controlled' by the debtor ... there was no evidence before the chambers judge, and no finding, that the appellant 'controls' Agri-Capital" - See paragraphs 43 and 44.

Family Law - Topic 2538.2

Maintenance of wives and children - Enforcement - Orders - Passport suspension - A chambers judge ordered an ex-husband to surrender his passport to the court until all his child support arrears were repaid - The ex-husband appealed - The Alberta Court of Appeal allowed the appeal, holding that the chambers judge lacked jurisdiction to require the appellant to surrender his passport - See paragraph 45.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - An ex-husband appealed a child support award based on imputed income, arguing that the chambers judge erred (i.e., breached procedural fairness) by relying on a divorce and property agreement between the parties in making his decision without giving notice to him that he would do so - He claimed that where a court proposed to rely on documents in court files to decide a matter, it had to first give notice to the parties of intention to do so - The Alberta Court of Appeal rejected the husband's argument - See paragraphs 23 to 25.

Family Law - Topic 4046

Divorce - Corollary relief - Maintenance - Enforcement - General - [See Family Law - Topic 2536.2 ].

Family Law - Topic 4047

Divorce - Corollary relief - Maintenance - Enforcement - Jurisdiction - [See Family Law - Topic 2538.2 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40; 172 D.L.R.(4th) 577, refd to. [para. 19].

A.R. v. Director of Child, Youth and Family Enhancement (Alta.) (2014), 575 A.R. 36; 612 W.A.C. 36; 308 C.R.R.(2d) 361; 2014 ABCA 148, refd to. [para. 20].

Alberta (Treasury Branches) v. Opsteen (2012), 533 A.R. 49; 557 W.A.C. 49; 2012 ABCA 153, refd to. [para. 21].

Cymbaluk v. Surface Rights Board (Alta.) et al. (2009), 471 A.R. 166; 2009 ABQB 263, refd to. [para. 21].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

Petrelli v. Lindell Beach Holiday Resort Ltd. (2011), 310 B.C.A.C. 196; 526 W.A.C. 196; 340 D.L.R.(4th) 733; 2011 BCCA 367, refd to. [para. 24].

D.W.H. v. D.J.R. et al. (2013), 556 A.R. 81; 584 W.A.C. 81; 2013 ABCA 240, refd to. [para. 27].

Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation) et al. (2012), 522 A.R. 159; 544 W.A.C. 159; 2012 ABCA 36, refd to. [para. 38].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 38].

Goett v. Goett (2013), 553 A.R. 275; 583 W.A.C. 275; 2013 ABCA 216, refd to. [para. 44].

Counsel:

J.P. Tieman, for the appellant;

C.A. Regier, for the respondent.

This appeal was heard on December 1, 2014, before McDonald and Brown, JJ.A., and Hughes, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court on December 12, 2014.