Haisman v. Haisman (1994), 157 A.R. 47 (CA);
77 W.A.C. 47
MLB headnote and full text
Rhiannon Ann Haisman (respondent) v. Martin Daniel Haisman (appellant)
(Appeal No. 14005)
Rosalie Kay Fehr (respondent/appellant by cross-appeal) v. Brian Wesley Fehr (appellant/respondent by cross-appeal)
(Appeal No. 13915)
Indexed As: Haisman v. Haisman
Alberta Court of Appeal
Hetherington, McFadyen and McMahon, JJ.A.
July 14, 1994.
Summary:
In Haisman v. Haisman, a husband applied under s. 17(1) of the Divorce Act to rescind or vary child maintenance arrears of $20,544 and spousal maintenance arrears of $2,400 ($36,763 with interest) that accumulated since 1982. Most of the arrears were for child maintenance. The husband claimed the inability to pay them at the time and to require him to pay them now would give his wife an inequitable hoarding windfall.
The Alberta Court of Queen’s Bench, in a judgment reported 137 A.R. 245, refused to vary or rescind the arrears. The court set out a payment schedule to pay off the arrears. The husband appealed.
In Fehr v. Fehr, the husband applied to rescind $14,100 in child maintenance arrears and to vary the provision for ongoing maintenance.
The Alberta Court of Queen’s Bench reduced the arrears to $8,100 and ordered the husband to pay $400/month child maintenance. The husband appealed. The wife cross-appealed. The two appeals were heard together.
The Alberta Court of Appeal allowed Haisman’s appeal in part (interest only), dismissed Fehr’s appeal and allowed Mrs. Fehr’s cross-appeal.
Family Law – Topic 4013
Divorce – Corollary relief – Maintenance awards – Interest on awards and arrears – [See fifth
Family Law – Topic 4050
].
Family Law – Topic 4014
Divorce – Corollary relief – Maintenance awards – To children – The Alberta Court of Appeal stated that “when a mother has custody of a child and a court orders the father to make payments to the mother for the maintenance of that child, it is not open to him to make payments to the child instead. Nor is it open to him to buy things for the child and to claim that the amounts which he spends in this way should be deducted from the maintenance payments which he was ordered to make to the mother. In neither case has he complied with the order of the court. Further, the mother, as the custodial parent, is entitled to decide how maintenance payments for the child will be spent.” – See paragraph 79.
Family Law – Topic 4050
Divorce – Corollary relief – Maintenance – Enforcement – Payment or cancellation of maintenance arrears – A wife applied to enforce payment of 10 years’ child and spousal maintenance arrears ($20,544 and $2,400 respectively) – The husband submitted that ordering payment would be to permit the wife to hoard maintenance and receive a windfall – The Alberta Court of Appeal stated that “on an application to vary a child support order the rule against hoarding should not be applied. It is not in the public interest, and it is inconsistent with the Divorce Act” – The court stated that it need not consider whether the rule against hoarding applied on an application to vary a spousal support order, because in this case the amount involved ($2,400) was not a “crippling” debt and the rule against hoarding could not, on the facts, apply – See paragraphs 37 to 51.
Family Law – Topic 4050
Divorce – Corollary relief – Maintenance – Enforcement – Payment or cancellation of maintenance arrears – The Alberta Court of Appeal stated that “where a former spouse has not been able, for relatively
short
periods of time in the
past
, to make child support payments
as they came due
, this circumstance does not justify a variation order which has the effect of reducing or eliminating
arrears
of child support. Where the
past
inability to make child support payments
as they came due
has lasted for a
substantial
period of time, but the former spouse did not apply during that time for a variation order, the situation may be different. On a later application to vary, a judge will have to decide, with the benefit of hindsight, whether it would have been appropriate to suspend enforcement of the support order during the time when the former spouse was unable to pay, or whether at least a temporary reduction in the child support payments would have been in order.” – See paragraphs 23 to 24.
Family Law – Topic 4050
Divorce – Corollary relief – Maintenance – Enforcement – Payment or cancellation of maintenance arrears – The Alberta Court of Appeal stated that “a
present
inability to pay
arrears
of child support does not by itself justify a variation order. … in the absence of some special circumstance, a variation order should only be considered where the former spouse has established on a balance of probabilities that he or she can not pay and will not in the future be able to pay the arrears. In short, in the absence to some special circumstance, a judge should not vary or rescind an order for the payment of child support so as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse or judgment debtor can not then pay, and will not at any time in the future be able to pay, the arrears.” – See paragraphs 26 to 27.
Family Law – Topic 4050
Divorce – Corollary relief – Maintenance – Enforcement – Payment or cancellation of maintenance arrears – The Alberta Court of Appeal stated that the one year rule against enforcing maintenance arrears clearly did not apply to child maintenance arrears and should not apply to spousal maintenance arrears – See paragraphs 36, 49.
Family Law – Topic 4050
Divorce – Corollary relief – Maintenance – Enforcement – Payment or cancellation of maintenance arrears – A husband owed 10 years’ accumulated child maintenance of $200/month and spousal maintenance of $2,400 – The trial judge ordered the husband to pay the full amount of the arrears plus simple interest at the rates prescribed by the Regulations under the Judgment Interest Act – The court stated that the husband had the past and present ability to pay the $36,763 debt – The court gave the husband the option of paying $700/month for three months, then a lump sum of $30,000, or $700/month until the debt was discharged, with provision for acceleration of the entire balance upon missing a payment – The Alberta Court of Appeal affirmed the refusal to vary arrears, but held that the trial judge erred in calculating interest – Interest was payable only at the rate of 5% per annum (simple not compounded) on each of the periodic payments, from the date on which it should have been paid until it was in fact paid – See paragraphs 52 to 62.
Cases Noticed:
Zilka v. Zilka (1978), 9 A.R. 27; 5 Alta. L.R.(2d) 358 (C.A.), refd to. [para. 17].
Holt v. Thomas (1987), 79 A.R. 131; 51 Alta. L.R.(2d) 311 (Q.B.), refd to. [para. 33].
Hubick v. Hubick (1987), 82 A.R. 321; 55 Alta. L.R.(2d) 224; 10 R.F.L.(3d) 196 (C.A.), refd to. [para. 34].
Hamelin v. Ladouceur (1985), 61 A.R. 244; 46 R.F.L.(2d) 419 (Q.B.), refd to. [para. 34].
Morgan v. Morgan (1989), 94 A.R. 79; 20 R.F.L.(3d) 12 (C.A.), refd to. [para. 35].
Patton v. Reed, [1972] 6 W.W.R. 208 (B.C.S.C.), refd to. [para. 38].
Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304; 38 D.L.R.(4th) 699; 17 C.P.C.(2d) 104, refd to. [para. 40].
Barnes v. Barnes, [1986] N.W.T.R. 376 (S.C.), refd to. [para. 42].
Pelech v. Pelech, [1987] 1 S.C.R. 801; [1987] 4 W.W.R. 481; 76 N.R. 81; 7 R.F.L.(3d) 225; 14 B.C.L.R.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, refd to. [para. 74].
Statutes Noticed:
Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 2(1) [para. 86]; sect. 17(1)(a), sect. 17(4), sect. 17(6), sect. 17(7), sect. 17(8) [para. 9].
Interest Act, R.S.C. 1970, c. I-18, sect. 13, sect. 14, sect. 15 [para. 55].
Interest Act, R.S.C. 1985, c. I-15, sect. 12, sect. 13, sect. 14 [para. 55].
Judicature Act, R.S.A. 1980, c. J-1, sect. 15 [para. 53].
Judgment Interest Act, S.A. 1984, c. J-0.5, sect. 1, sect. 6 [para. 60]; sect. 8(4) [para. 61].
Maintenance Enforcement Act, S.A. 1985, c. M-0.5, generally [para. 2].
Counsel:
Penny L. Pritchett, for the appellant, Martin Daniel Haisman;
Diann P. Castle, for the respondent, Rhiannon Ann Haisman;
Karen Tottrup, for the Director of Maintenance and Enforcement Program;
David J. Salmon, for the appellant/respondent by cross-appeal, Brian Wesley Fehr;
David P. Vallance, for the respondent/appellant by cross-appeal, Rosalie Kay Fehr.
These appeals were heard before Hetherington, McFadyen and McMahon, JJ.A., of the Alberta Court of Appeal.
On July 14, 1994, Hetherington, J.A., delivered the following judgment for the Court of Appeal.
