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I am writing this story in memory of my son and for his children. There have been so many children and extended families that have had their lives ruined by the injustices caused by the existing system dealing with divorce and separation. I have had help in writing this, clarifying the expression of my ideas. But I have worked hard to be sure that it says only things I am very sure are true. Prove that people do care by taking the time to read his story. I have changed their names. I will call my son David, and his ex-wife, Alice.
David was born May 4, l97l in Oromocto, N.B. His father was in the military and David had one brother that was five years older than him. Due to circumstances, I moved to Edmonton in 1975 to live. David did not have the opportunity to know his father. I encouraged a relationship between my son and his father, but due to the distance one never developed. There was no extended family in Edmonton and life was lonely and hard for both my sons because I worked shift work.
There was not a lot of money and my children did not have designer clothes, but I was prudent and eventually we moved out of low rentals and I bought a small home. My husband sent $120 a month for support. Holidays were fun and we would take off in an old Volkswagen and we would look for a park.
School came easy for David. His teachers always gave nice comments on his report cards. David loved to please others even if it meant giving away a toy or something he valued. Sometimes I would have to lecture him on being generous to a fault. I once gave David money to spend on a field trip at school. Instead of spending this on himself he bought me an Eskimo figurine that I still treasure.
Growing up David played soccer but hockey was his first love. His position on the team was goalie. Later on David was a diehard Oiler fan. Books were important to him and reading became his favorite pastime. If boredom set in he would say, “Let’s go downhill skiing.”
During his teenage years David was mischievous but he chose not to do drugs and he never caused me grief. His brother died suddenly in 1990 at the age of 24. This had a tremendous effect on both of us. We talked about his brother and David remarked how he used to hear his brother crying in the night. His brother would say to David, “It is no fun to grow up without a dad.”
It was a proud day when David graduated from school. He received a card from his grandma, who lived in Manitoba. The card said she was proud of him and for him to be good to his mother because he was all that she had left.
David was a hard worker. He worked as a waiter, construction jobs and he dreamed of saving enough money to buy a car. David believed money would bring respect. He wanted to get into the Fire Department and he enrolled in NAIT.
David was popular. He went out with many girlfriends and he had a lot of friends. One night David met Alice in a bar. They started dating, but it did not look too serious. David did not have plans to be serious about relationships until he got a career. Alice was persistent in phoning my home to talk to David. If David were not at home she would come over anyway.
I am from the “Old School” and I have little tolerance for any kind of drugs. I was upset when I discovered Alice smoked pot. David did not like pot, but he said, “Mom, it is not a big deal because it is almost acceptable by today’s standards.” I used to joke with David about Alice. I told him, he better make good money because this girl was high maintenance. Her father had just bought her a nice sports car. Alice was jealous and had confrontations with a former girlfriend of David’s. I was relieved when David and Alice broke up.
David was attracted to Alice’s close knit family setting and he started dating Alice again. David started spending a lot of time at their family home helping her father with yard work and doing household improvements with him.
On one occasion when Alice and David were at my home, an incident happened outside that bothered me. David went out to go to the store and Alice went out and made a scene. Alice said to David, “Where do you think you are going? You don’t leave without letting me know first.” She was so loud, my neighbor commented on how controlling this girl was. David was not even married to her at this time and he could not take a breath without her permission.
David did not see his friends as often. His friends disapproved of Alice and Alice did not like them. It worried me that David seemed to be isolating himself from everyone. The next thing I knew they were getting married and a wedding date was set for August of 1995. It was a big expensive wedding paid for by Alice’s father. David wanted his dad to come for the wedding, but his dad could not afford to come and he declined.
They rented an apartment in St. Albert and Alice continued to work as a Loans Manager for Capital City Savings. Alice wanted to buy a condo close to her parents’ home. Due to the financial situation it was not feasible for David to continue at NAIT. I was apprehensive when David announced to me that he was going to take a course to work on the oilrigs. He convinced me that this was only temporary, just until they got on their feet. I had been a military wife and I knew how hard it is to have a family life when a husband is gone for weeks at a time.
They bought a condo in Edmonton August l4, 1996. He did a lot of work on this condo doing renovations. His father-in-law helped him. November 15, 1996 David was a proud happy father when he watched his son come into the world.
In 1997, I called my son at work at the oilrig site and I told him his father was sick and he should try and go to see him in Ontario. The last time they had seen one another was at David’s brother’s funeral in 1990. David’s father had cancer. He died before David got to see him. David and his family went to his dad’s funeral in Ontario. David got to meet his half-brothers and other family members he did not know before.
I was glad to see a strong relationship develop between my son and his father-in-law. They spent time together golfing and worked on several projects together. His father-in-law was going to purchase a bakery and he wanted to make it a family business. Somehow I could not picture my son as being a baker, but David said it would mean that he could be at home instead of being gone for weeks at a time.
I visited them at their condo. I believed my son made good money so one night when Alice and I went to rent a movie I was surprised when Alice asked me to use my name because she owed them money. Alice did have a tendency to blow matters out of proportion. She was not easy to get along with at times. My son laughed when I called his wife a “Drama Queen” the time I forgot to take my shoes off in their house. Alice made such a fuss and she said I did this on purpose because I did not have respect for her.
I tried not to be judgmental and put my feelings aside. I knew her life was very different than mine. She was given almost everything she asked for from her dad. She was the apple of his eye.
In 2000 David’s world was turned upside down. He came home from work and found out he was bankrupt. His wife always looked after their financial affairs and he did not see this coming. His RRSP’s that they had acquired so far were gone. Jewelry my son had bought Alice was pawned. The new truck David had bought in 1997 was lost. The reason was Alice’s serious gambling problem. David told me: “Now I know why all the dealers knew her when I went with her to the Casino.” He also told me that the amount of money she gambled away was $80,000. Around the same time, David told me that she was fired from her banking job. Even though Alice did not work, David was able to pay off the bankruptcy debts within a year. He did this by working very hard, and he continued doing so in 2002. He made more money that year than he had ever made before.
The hardest thing Alice said she had ever done was to tell her father about her gambling. Around this same time, David’s father-in-law bought a bakery. But his father-in-law’s cancer, which was in remission, came back. He lay on a hospital bed at home on morphine. After a painful struggle with cancer, he died in 200l. The bakery was sold and I do believe the family took a loss on it because it never really got off the ground. The bakery was a family dream that did not happen.
It was understandable that Alice was emotionally distraught. I think I was the only one at the funeral who realized how much pain my own son was feeling and how much this man meant to him. He was trying to cope with all of this. Both of them looked lost. On the brighter side for this year, their daughter was born on March 22 of 2001.
In August of 200l I received a phone call from Alice and she asked me to co-sign for them to buy a new home. They needed a co-signer because of having been in bankruptcy. I was shocked at this request. I told Alice that I was not in a position financially to co-sign because I had my own mortgage. I tried to reason with her. This would put a strain financially on them and moving would not fix the pain of losing her father.
I did not even know it when David and Alice had sold their condo in Edmonton. David told me later that Alice was angry with me because I was the first person to ever have said “No” to her. Alice’s actions over time led me to think that she was trying to isolate him from me and other outside influences.
When I finally got to visit this new home, which was in [Town X, two hours’ drive from Edmonton], I could see David was proud of this home and worked on the basement on his days off. The furniture was expensive. My grandchildren had TV’s and computers. No one seemed to want for anything. If the dishes did not match the décor, Alice would throw them out and buy new ones.
I visited with my grandson on his birthday. David called from work to wish his son a “Happy birthday”. He said to me on the phone, “At least you can be there”. He missed his children. I did not visit often because I respected Alice’s wishes that David did not have many days off, and they wanted to spend their time together.
It is hard to think back to when things started to fall apart in 2003. If David was not in a camp, he had to stay in hotel rooms close to the rigs. He called me and I could tell that he was lonely. Restaurants and bars were his home away from home. Alice liked the money he made but was not coping with him being away. Once Alice called David and wanted him to come home because the cat had died. David told me Alice called several times a day and if he did not answer right away she would accuse him of having girls in his room or stated that David did not care enough about the family. David told me he would call home and sometimes there would not be an answer. During our conversations, David sounded frustrated. He could not seem to please Alice no matter what he did. The renovations on the basement were not being done as quickly as she liked. She said she was bored and felt cooped up while he was away.
Alice called me at my home in February 2003. She told me David had confessed to her that he was drinking too much and he had started to use drugs. Her first words to me were, “It is all my fault.” I was speechless, scared, and I was in shock. I did not ask for specifics. I just listened. I could not sleep that night. I called my son at work. He said, “Mom, there is nothing you can do, you cannot fix it.” David didn’t want to talk. He said “It is between me and my wife.”
Now I got calls every night from Alice. Sometimes the children would be put on the phone. They were crying and all I could do is reassure them their dad did love them.
His wife said that she had established a good rapport with the employees who worked for his employer, a well servicing company. In any case, she called them on a daily basis about her concerns about David. The next thing I knew a test was initiated for alcohol and drugs on my son at this workplace. The test was positive; for what substance or substance, they did not report. David then went to Calgary to see a counselor and on May 8, 2003 he went to rehab. David actively participated in the program. He was discharged June 5 after he had successfully completed this program.
I saw David at his mother-in-law’s home in Edmonton when he returned home from rehab. He seemed so happy and hopeful and gave me a hug and told me everything was going to be okay.
During July of that year I visited them at their home. Alice’s cousin was there and everyone wanted to go partying at the bar. David said to Alice, “That is not a good place for me to go.” Alice was smoking pot--something several friends told me she did a lot--and drinking. I left [Town X] with a heavy heart knowing things had not changed.
In August of 2003 David took Alice on a vacation to Cub a. I believe he hoped it would help the situation at home.
In November of 2003 the situation had escalated. Alice told David to get out. My mother-in-law and I drove to their home in my vehicle. David was not present, but all his clothes were in garbage bags. Alice greeted me with hugs and kisses. She said, “Thank God, you are here, I need help!” That night I tried to reason with Alice that David had stood by her through her gambling and he had got them out of bankruptcy. Alice only could see one side, her side. I left the home at midnight because of her bizarre behavior toward me. I stayed at a friend’s place that night in [Town X].
The next day, I met David back at their home when he came to pick up his clothes that were in garbage bags. We stood on the deck and talked. He asked me to pay off a small instant loan of approximately $400.00 that he borrowed against his truck. He said that he needed to eat and there was no money in the bank. (When I examined his bank account records years later, I could see that his paychecks were going in regularly, but larger amounts were being spent. Those records don’t say what most of the payments were for, but as I said earlier, I know about Alice’s extravagant spending habits.)
David started putting the bags in his truck. He looked tired and beaten. I was told by Alice to keep my mouth shut because I had no part in this. The drive home to Edmonton was a solemn one. I tried to be discreet and tell Alice’s mother that her daughter had a tendency to exaggerate in telling her stories but I don’t think she believed me. David slept in his truck and spent some time staying at my house until he found a place to live.
At the end of 2003 David came home from work to spend Christmas with me. He also began working for a different company, Roll’n Well Servicing. David told me he really had not wanted to leave Precision Drilling because he had been with them for several years. But he said he was having a hard time dealing with Alice calling his work place on a daily basis telling them her side of their marriage problems and demanding drug tests. David said, “Mom, our marriage is not a soap opera.” He went on to say he told Alice where he was now working, and he knew it would not be long before she would start calling these people too. Alice did begin calling them. On one occasion that I know of, she made very insulting remarks to his boss.
Alice and the children came to Edmonton to spend Christmas at her mother’s place. It was hard to make plans as to whether we would get to see the children or not. Alice would not commit to a “Yes” or “No”. The children did come over to my place and spent the day with their father. When Alice picked them up, she seemed in a foul mood. David went over later to Alice’s mother’s place and talked to Alice. When David came home he said, Alice was very angry because he told her he did not want to go back to that kind of life with her. David said, “ l love her but I am not in love with her.”
During this time, I believe there was a lot of conflict and a lot of promises made. Alice and David were on and off until 2005 when they broke up for the final time.
On January 22, 2004 a server served papers on me, for David, at my home in Edmonton. I told him David was working in Hinton for Roll’n Well Servicing. I did not want to accept these documents because the server would not tell me what they were. He said, “I am leaving these documents at this address because that is what I have been instructed to do. It is up to you what you do with them.” I called David at work and asked him if I could open these documents. Upon seeing what the content was I said: “You better come home as soon as you can.”
These documents were an Affidavit written by Alice, a Statement of Claim for Divorce and Division of Matrimonial Property, and an Ex Parte Order granting on an interim basis what her Statement of Claim asked for. These documents were filed and granted the same day in Red Deer, January 19, 2004. (“Ex Parte” means that the other party is not told about the court appearance, and so cannot be there to oppose the application and tell their side. Legally, these orders are supposed to be granted only in emergencies or when the other party cannot be located.) She submitted no documentary evidence regarding the income or expenses that she alleged for either Alice or David.
Alice’s affidavit painted a picture of David as having had a drug and alcohol abuse problem for “several years”, and claimed he was “addicted to crack cocaine”. But her only support for these allegations was a letter written on June 22, 2003 stating that David had actively participated in and successfully completed a Rehab Program. The letter does not say what substances were involved, and says nothing about an actual addiction or about duration of use. (Remember, he was discharged after only four weeks.) Alice had obtained this confidential letter from the Personnel Co-ordinator for David’s employer, whom Alice had become friendly with. Alice also says in her affidavit that she herself had had an addiction to gambling and so knew all about addictions. But she did not admit that her gambling had run up $80,000 in debt for the family, or that David’s hard work had gotten them out of bankruptcy afterwards, all very recently. That by itself would have thrown great suspicion on her claim that he was addicted to hard drugs, and on her insinuation that he (not she) was a danger to the family’s financial resources.
As I discuss below, David later lived with me again for long periods of time. During all that time, I never saw any evidence that he was using drugs. Nothing in his behavior even suggested that he was ever under that kind of influence, and he stayed away from drinking establishments. Also, as we will see, in all that time he had little money to buy anything as expensive as street drugs. Everything I know about both him and Alice suggests that her accusations of continuing heavy drug use by him were maliciously made. But according to certain people who knew them both, Alice herself was a big user of marijuana and alcohol, and one of them told me that Alice had used cocaine.
Alice’s affidavit said David left their home in November 2003. She didn’t mention that she had demanded that he leave. She stated that David had only worked four days during the recent pay period, and his paycheck was not even enough to pay their overdue bills. (Note: For the month of December, 2003, as seen from David’s bank statement, the amount deposited from his employer was a total of $3,809.98.) Alice writes that David informed her he would send her a check for $2,500, but that she did not know whether David would actually follow through on that promise. Alice states that up to this date she had not received any funds from David. But a bank receipt shows that David deposited $2,000 in cash to Alice’s account on January 19, 1004. So without having been told she would be in court that day, he kept his promise to find money to support her.
Alice attached a sheet to her affidavit saying she had expenses in the amount of $4,280 a month. She included the monthly mortgage for the home in the amount of $864 (based on bank records, this would have to include taxes on the house), her cigarettes $300, and the truck loan $500 (see below about the truck). She provided no documentary evidence (receipts, bank statements, etc.) for any of the expenses she claimed. I understand that judges usually require such evidence, especially in ex parte hearings. But the need for proof evidently didn’t matter to this judge.
Alice attached a copy of the registration of their truck, registered in David’s name. David had recently taken out an instant loan using this vehicle as collateral, and she claimed that he had done it to support his drug habit. (She didn’t mention that it was for only $400. How much of a drug habit could that support? And remember that she was claiming $300 per month for cigarettes.) Alice stated that David said his mother had paid this loan off, but said she did not have proof that this was true. (I had told Alice that I had paid off the loan. She was angry that I did this, Alice did not want anyone to help David.)
Alice attached bank statements on David’s investment-RRSP and his defined-contribution pension from the previous year. The pension contained $2,749.92 as of the preceding September and the RRSP, which later increased substantially in value, was worth $10,126.76 the preceding June. Alice wanted these accounts frozen because, she stated, she was afraid David would cash them and she was concerned about all their matrimonial assets.
Alice wrote in her affidavit that her income was $15,000 a year, based on the fact that she had just started working in a training program that did not guarantee fulltime employment upon completion. She gave David’s salary as being $89,000. She based this on one tax form, which was from 2002 and was the highest salary David had ever made. Because she looked after all of David’s finances, Alice would have known that his incomes for earlier years and for 2003 were much lower. She knew how impossible it was for him to pay such large amounts.
Alice requested that the court order be served on David’s mother who lives in Edmonton, because, she said, she did not know where David was residing. (But she knew where he was working.) Alice gave a ground for divorce that is very commonly alleged on divorce applications these days, that David had treated her with mental cruelty. Alice requested the court to give her sole custody of the children and child support based on the income she had alleged for David.
The Ex-Parte Order issued by [Justice X] gave Alice exclusive possession of their home, interim custody of the children, child support in the amount of $1,167 a month plus extra child expenses in the amount of $593 a month, and spousal support of $1,000 a month. So the total amount David was ordered to pay was $2,760 per month, all commencing January 1. (Keep in mind that all these amounts are tax-free to the recipient, who also gets many benefits such as child allowances, but are taxable to the payor.) His pension funds were frozen and David was prohibited to encumber their l998 Dodge Ram truck. David was given thirty days to file a Statement of Defense. Alice went to work right after getting this order. (She testified three years later that she had made $36,800 in 2004.) Yet she was awarded that large amount of spousal support instantly, with no questions asked. David was in shock. He said: “Who do I pay first?”
This judge had no right to issue this Ex-Parte Order. There was no emergency. Alice had not even alleged that there was one. He had a duty to deny her application until David had been served proper notice, giving him a chance to gather his documents to answer her allegations. The judge could simply have made an order for service on David of a Notice of Motion for a regular court appearance in a couple of weeks’ time. David had the right to be in court with Alice to present his own side. This is how justice is supposed to work.
Years later, I got a transcript of what happened in court that day. The way I see the words of Alice’s lawyer, he realized that it was wrong for him to request such an order, but knew that this particular judge would likely go along. Beginning with what looks to me like a sly “Oh, by the way” approach following some other court application, he says: “Sir, I also have an ex parte application for you, if you will humour me, Sir.” Then he pretends to know for a fact that David has a serious ongoing crack cocaine and alcohol problem. (Was this to insinuate that David was dangerous, or perhaps that David wouldn’t show up for a regular court appearance, in order to justify an ex parte request?)
As if granting this unjust order in this unjust manner were not enough, this judge required David to pay Alice $2,000 for court costs. This was $500 more than her affidavit had requested. I understand that court costs are usually not ordered in family law hearings, and that even in instances where they are ordered, in a brief Morning Chambers application such as this one, they would be only a couple of hundred dollars. But on top of that, I understand that it is almost unheard of for costs to be awarded in hearings of which the other side was not informed. Since there was not even a legitimate reason for this to be an ex parte hearing in the first place, requesting these court costs was another outrageous thing for Alice’s lawyer to do, and it was outrageous for the judge to grant (and even exceed) the request. When the judge ordered that unjust $2,000 in costs for this unjust ex parte order, he added a remark that in my mind reflects the unfeeling attitude behind it all: “I expect that will get him in here”. If anything, all of this injustice had the very opposite effect on David.
Over the course of the divorce process, we shall see, there were many other irregularities and injustices for Alice’s benefit. One small example is the court requirement for separating parents to take the “Parenting after Separation” course. The rules state that a certificate proving that it was taken “must be filed with the Clerk of the Court before any notice for interim relief is filed”. At one point David’s lawyer was sent a letter demanding that he file the certificate, which that lawyer had failed to do. But the court records show that only David ever took the course—Alice never had to do so to get any of her court applications accepted. (The course is supposed to teach parents how to cooperate following separation, but I have heard other stories of the woman not being required to attend it.) A large part of my reason for writing this lengthy account is to expose all the injustices that many, many fathers are subjected to.
Early in 2004 after the Ex-Parte Order, David found a place to live. It was on the same street where his wife lived. He shared the basement with another guy and I believe the owner lived upstairs. David did not want to move far away from his children and he was trying to get Alice to settle out of the courts with little expense to lawyers. Another reason, he told me, was so Alice could not claim again that she did not know where he was residing.
During this time period, however, Alice did many things to make David’s life stressful. He had left her with their Neon car, so she would have transportation for herself and the children. But numerous times she got parking tickets and then failed to pay them. Because the car was registered in David’s name, he was forced each time to go and pay it. For another example, on one occasion I had a call from Alice to tell me David had smashed up their truck. I could not believe this. A friend of mine who lives outside of Edmonton got a call from Alice as well. She told him the same story. This friend of mine had met Alice a few times. She was so convincing he believed her and told me that David sounded like he had lost it. This friend and another woman and I drove down to [Town X] and the truck was sitting at their home in the backyard. We were both surprised to see only a taillight had been broken.
I asked David what was happening. David said Alice was slandering his name to anyone that would listen to her stories. She had been calling the police and telling them she was scared he was going to take something from their home. David said “Mom, I don’t know how to deal with this.” Finally Alice demanded that he give her the truck, he told me, because her mother was involved in their getting the money to buy it. David had been regularly paying the loan off, though I have no records to show how much he had paid. (Remember that Alice’s gambling debts had caused the loss of his earlier truck.) He told me that she and her mother would take the truck through the courts anyway, and reasoned that if he just gave it to her voluntarily, it would appease her and she would back off. But since the truck was matrimonial property, each of them legally had a half interest in whatever equity there was in it.
Also early in 2004 I visited my grandson and walked home with him from school. I noticed his zipper was broken on his jacket and he needed a new one. When David heard he bought his son a new jacket, which I gave to my grandson. He told me he was angry with his dad and did not want to see him. He related to me how he and his mother were looking in the basement windows of where his dad was living, and his mother told him that all the boxes in the basement were filled with drugs. I visited both children on another occasion in that time frame, and it hurt me when another man who was staying with Alice instructed my granddaughter to give me a hug. This man had a boat and he was going to take my grandchildren and Alice’s mother on a fishing trip.
David told me he felt he should move because his living so close was not helping the situation but making it worse. David said even the owner of the house David was living in did not want to get involved in the marriage dispute, and he did not want Alice coming over to the house with accusations about everyone who lived there and telling all the neighbours stories. I felt living across the street would never change how Alice felt towards David. I told David to move home with me until he could get back on his feet, which he soon did. Without his own truck, he found it hard to get rig work. So after spring breakup he did construction work in various places until fall, getting rides to the sites with co-workers.
David hired a lawyer in Red Deer on February 9, 2004. His name was [Lawyer B] from the firm Chapman Riebeek. This lawyer drew up a Notice to Disclose, in order to establish the financial situation of David’s wife. This notice demanded that Alice provide the court with copies of 3 years income tax returns, pay stubs, cheques issued to her during the previous 6 weeks, an itemized list of her income, assets and liabilities, receipts for the extra child expenses, copies of bank account statements, RRSP’s, and copies of credit card statements for all credit cards in her name. This lawyer sent this document to her lawyer and filed it with the court on February 11, 2004. For reasons I do not know, the hearing for this Notice to Disclose was first adjourned and then canceled completely. What this seems to mean, which was confirmed by later events, is that his lawyer later agreed to a settlement of financial issues in the divorce without ever getting a disclosure of Alice’s financial records. So to this day, I do not have proof or full knowledge concerning certain vital financial facts concerning Alice.
Among these facts is the status of David and Alice’s matrimonial home. The house was sold on September 1, 2005. I did not know about this at the time, and did not learn about it until I did a search in 20l0 at the Land Titles office. What I learned revealed a motive for Alice to conceal financial information. The condo in Edmonton was registered in both David’s and Alice’s names as the owners. I believe David and Alice used their equity from their condo towards the down payment for the new home in [Town X]. But the records showed that their home there was registered solely in Alice’s mother’s name, saying she bought it for the amount of $139,900, and sold it for $174,000. These records describe it as Alice’s mother’s prime residence, even though she had a home and lived in Edmonton all the while David and Alice lived in the [Town X] home.
Bank records show that the mortgage payments for this home were taken directly from David’s bank account, and that the taxes on this property were paid from his bank account to the town of [Town X]. I do not know what kind of agreement David had with his mother-in-law for this property. Throughout their marriage, Alice kept all of the financial records and filed all of the financial reports such as income tax. But it certainly appears that only David was paying for this property. And evidently the reason her mother’s name was on the property had to do, once again, with the fact that David and Alice were unable to get loans after Alice’s gambling had put them into bankruptcy.
Receipts that David later attached to an affidavit show that in January 2004, David gave his wife $2,000, in February he gave her $3,000 and in March he gave her $1,300. So the total he gave her from January through March was $6,300 towards his court ordered payments. Based on the ex parte order, he still owed his wife $1,980 at the end of March, and he did not have the money to pay this amount. There were very many grounds to contest the huge payments originally ordered. This should have been done by filing a Statement of Defence, which is required (as noted in the ex parte order) by the courts in divorce actions. But David’s lawyer never filed it. So he never went to court to challenge the large amounts David had been ordered to pay without being allowed to be there to know about it and defend himself.
In April, I was shocked when David told me he had signed a “Consent Order” that the two lawyers had written up. David told me that he really did not have any other option because he was behind in his payments and his lawyer had advised him that they could put him in jail if the court ordered payments were not paid in full. I talked to this lawyer for the first time in 20l0, after David’s death, and to me he seemed very insensitive. I got the impression that this lawyer could not understand why David had trouble making these payments. It was as if he just believed Alice’s claim that David was making $89,000 every year.
On July 22, 2004, David served Alice a Notice to disclose her finances to the court because he felt nothing was being done for him by his lawyer. He did not understand that the consent order basically settled all financial issues in the divorce, making pointless any such disclosure by her at this time. And he did not realize, as most people would not, that even if one’s lawyer is doing absolutely nothing, as long as the lawyer is on record as representing you, you cannot legally file court papers on your own. So subsequently (after it was served on Alice’s lawyer, I assume) this filing of his was voided by the court’s clerks.
David was upset that the consent order still required very high monthly payments from him. I believe that that is why he failed to fully pay his lawyer, who filed a notice of “Ceasing to Act” for David a year later. As a result of this, David did not have legal counsel when, 16 months after the consent order, Alice’s lawyer went to court requesting another ex parte order which I will discuss later.
For some reason, David did not have a copy of the consent order until 2006 when he applied to go to court with a new lawyer in Edmonton. He was shocked at the full contents of this order. His ordered child support payments had remained the same as they were when his income was stated as being $89,000. That order had put his income at $50,000, but it did not lower the amount of $1,167 a month for child support. (Note: the amount of child support is based solely on the paying parent’s income, set according to standard guidelines. The “extra expenses” beyond regular child support, such as daycare costs, are supposed to be shared between the parents in proportion to their incomes.) Also, in crafting this order the two lawyers did not change the original amount of $593 for extra child expenses. This had been based on the childcare expenses Alice claimed in her original affidavit and on what she then guessed her 2004 income would be, $15,000. But by that date, Alice’s actual income from employment should have been reflected in the amount for those extra expenses. This is another example of irregularities in the consent order the two lawyers produced.
Another matter is relevant to this point. Lawyers are supposed to file a Child Support Data Sheet with the court, and court clerks are supposed to check orders carefully for such discrepancies as this one between the income reported and the child support assessed. But I found out later that these lawyers did not file that document, so this discrepancy was not caught. When I repeatedly checked the court files in later years, looking especially for any financial documents, I found no copy of that form for any year. (After I finally asked the clerks about this absence, I found in my final search that someone--presumably one of the court clerks--had filled out and filed a form for every year. These were full of errors, however. There were even forms for the two years, 2002 and 2003, before any court actions had begun!) The only change made in the consent order from the ex parte order was to lower the spousal support payments from $1,000 to $240 a month.
David told me he agreed to give Alice the RRSP and pension on his lawyer’s advice that doing so would lower his payments. (The two lawyers failed to have David fill out the legal form transferring these accounts from David to Alice. We will later see the consequences of this.) The consent order gave David no financial credit for either their 1995 Neon car or their Dodge truck. But David told me that he had never said, as stated in the consent order, that he had no interest in their home, and told me that he did not know how it came about that this was put on the consent order the lawyers wrote up. He was emphatic that he had agreed to give up the RRSP but not his interest in the home. He also did not know why there was no mention in the order of their household furnishings. He was frustrated and felt his lawyer had betrayed him.
Of course, I do not know what was actually said between David and his lawyer. I suspect that David signed his consent based on trusting what he understood his lawyer as saying about it, and did not read it or did not read it carefully. In any case, the irregularities by his lawyer noted above indicate that David cannot be blamed for all of the things that were done. Ordinary people know very little about all the complexities of law. Lawyers are paid a lot of money to know them and carefully advise their clients on how to protect the clients’ interests. And the fact that three months later David tried to file for an order to see Alice’s financial records, when the financial aspects of the divorce were already settled by the consent order, shows that he did not understand very much about what he had consented to on paper.
This Consent Matrimonial Property Judgment & Support Order was accepted by Justice D.A. Sirrs (since deceased). David’s payments were now $2,000 a month. The order stated that the funds from the RRSP and pension were to be applied to the child support arrears up to March 31st 2004. The remaining balance from the RRSP and pension was to be retained by Alice free and clear of any claims by David. Normally, RRSPs and pensions are split 50/50 as part of the property division in divorce. David’s half of the RRSP and pension accounts would have been around $6,500 at that point, and paying taxes on it would leave around $5,000. Since at the end of March he owed $1,980 based on the ex parte order, this all by itself cheated him out of around $3,000 in such credit.
The Court ordered payments were registered with the Maintenance Enforcement Program (MEP) effective April 01, 2004. MEP demand from their debtors, past income tax forms, bank statements, lists of assets, the address of your workplace. David did a lot of running around to get these papers to give to MEP. Alice was not co-operative in giving David his papers, all of which Alice had in her possession because she had looked after the family finances. David was under extreme pressures. He never knew from one day to the next how long he would be in town because of his work.
My son did not make maintenance payments for the first few months after the consent order. He had worked so hard for years to support his family, then the legal system took his children away and abused and cheated him. I believe that he did not pay at first because he felt that Alice had already gotten much more than she needed and much more than was right. But toward the end of summer he went back to work on the rigs, using a company-owned truck. On August 25, 2004 a garnishee by MEP was issued to Grizzly Well Servicing, David’s new employer, requiring that a large amount of David’s salary (more than the order required, in order to pay on the arrears as well) be directed to MEP. This was to be in effect for 5 years.
All of the stress David had suffered during the preceding year was still taking its toll on him. Then, sometime during the fall, one of the workers supervised by David hit the shoulder of the road in a truck pulling a rig, and the rig went over. David visited this young worker in the hospital, and the accident shook David up. He decided to change his job to well testing because the work was much less stressful, even though it paid less. David said to me, “Material things do not matter anymore to me.” David went to work for Rockwell Servicing, and MEP garnisheed his salary there on December 17, 2004. The amount to be paid to MEP was $2,500 monthly, which was more than he felt he could now pay.
Early in the year of 2005 David tried working on the big drilling rigs. I believe it was in order to make more money. But it was very different than the service rigs he was used to. He phoned me one night from work and he sounded scared and said, “Mom, everything here is run by computer.” He did not grow up with computers and he was having a hard time coping. Both physically and emotionally, he was finding the work environment of the oil rigs more and more punishing. After spring breakup in 2005, he felt he could not go back to them. I believe that that summer, he went on unemployment insurance. During much of this time when David was working out in the field, relations between him and Alice were very strained. It was difficult even for him to phone to talk to the children. And because he had to stay with me in Edmonton when he wasn’t in the field, he was too far from [Town X] to see the children very often. Also, I understand, by then Alice had another man staying at the home.
As I said earlier, Alice and David’s matrimonial home was sold on September 1 of 2005. Alice had moved in with her mother in time to get the children started in school in Edmonton. Around that time I picked my grandson up at Alice’s mother’s home and brought him to my home, where David was waiting to see him in my backyard. My grandson told me he did not want to see his dad. He had been told by his mother everything that had happened was his father’s fault, and earlier here I have described things she did that would alienate the children from David. I opened the gate and they just looked at each other. My neighbour witnessed this meeting. My neighbour said she wanted to cry when they finally hugged each other.
Alice began letting the children come over every second weekend. Soon after that when the children were at my place, David received a phone call from Alice. She told David that she had just received another Ex-Parte Order from a judge in Red Deer, one giving her permission to take the children out of the country without David’s permission so they could go to the US for vacation. It was the only time in his life that I ever saw my son angry enough to be violent. He punched a hole in my wall with his fist.
The first time David saw this order was in 2006 when his then-lawyer gave it to him. This Ex-Parte Order, dated September 07, 2005, was issued by Justice Sirrs. As I saw later from the hearing transcript, Alice’s lawyer simply told this judge, “You’re hearing an ex parte application, sir”--as if he knew in advance that no questions would be raised about granting such an order. And he was right. Justice Sirrs said not one word, just signed the order with all of the details that Alice’s lawyer had requested. (I must repeat what I said before about the injustice of this. Only unusual conditions of definite unavailability or serious danger are supposed to permit ex parte hearings. People have a legal right to be there to dispute accusations made against them and the other claims made regarding them.) What kind of judge cares so little about justice that he is well known as a rubber stamp for unscrupulous lawyers?
Alice’s affidavit for this order claims she did not know where David was residing. But she says the Notice to Disclose her finances that was served on her by David on July 22, 2004 used his mother’s address, and she requested to serve all future documents at that address by regular mail. Justice Sirrs also granted this request. This too was outrageous behavior by a judge. Normally, a person’s right to know what is done regarding him or her in court is considered so important that the document must be handed directly to him or her, by someone prepared to swear an oath that it was done. In the case of substitutional service, it is handed directly to someone closely associated with him or her. Despite the well known unreliability of regular mail, this judge did not even require the use of registered mail. If it was never mailed at all, no one could prove it. In fact, there is no record in the court file that Alice’s lawyer did mail it. There is no affidavit sworn by him that he did so. In any case, for a second time this lawyer deliberately refrained from letting David know in advance about a court hearing so that David could attend.
One further detail: Alice’s written request, and the resulting order, had my address wrong. She placed an ‘A’ at the end of the name of my street (xyzA Avenue instead of xyz Avenue). Alice’s lawyer didn’t even check David’s Notice to see whether Alice had given him the correct address. For whatever reason, the order never came to my home.
Consequently, David never saw or read this affidavit, which I found in 20l0 at the courthouse. I am glad he never read what it says about him. There Alice repeats her earlier claim that David has “for several years” had “serious alcohol and drug abuse problems”, and says she believes that he still has them. Then she makes the shocking claim that as a result of this substance abuse, he “has not played a significant role in the lives of our children for the past several years”. She says that David “has not even called the children on the telephone”. Alice’s affidavit says that she “will continue to parent our children on my own, without any assistance from the Respondent”.
The truth about David’s relationship with his children is very different from what Alice alleged in her affidavit. He tried to be with them any time he could. I have already explained that he originally moved in close to her so he could be with them, and how Alice made that arrangement impossible. It was hard for him to visit them after he moved to Edmonton and was working in various places around the province, and I have explained how Alice’s constant hostility made it painful for him even to try to talk to his children on the telephone. But as soon as they moved to Edmonton and David could see them without Alice present, he was able to be the dad he had always been before.
My grandson at that time played hockey and David would help him put on his hockey gear at the games when he played. The children and their father would skate on the outdoor rink by my home. David took the children in my vehicle to collect bottles to help finance his son’s hockey. Christmas of 2005, the children were at my home with their father. We all went out to a friend’s acreage and my son introduced them to the owner’s horses. My granddaughter was the only one brave enough to ride one. They visited the zoo, the Science Center, they went to Heritage days, and movies. They played board games and built models in my kitchen. They played croquet in the backyard with their father. The children never wanted to go home.
But these visits were stressful because neither David nor myself knew what kind of mood his wife would be in when the exchange would take place. When the children were here Alice would phone constantly to see if they were okay. David refused to retaliate when Alice would bad-mouth him in front of the children. I also kept quiet because I did not want to jeopardize these visits because these visits made my son so happy. I believe that David, knowing from his own childhood how important it is for a child to have a dad, was hoping they would settle their differences and would be a family again.
I am going to mention here that on one occasion my grandson took some money from my bedroom. I talked to him that this was wrong. He looked at me so innocently and said, “Grandma, it’s okay, mom says you have a lot more money than we do.” In fact, as a longtime single mother now approaching retirement, I had little money. When David had been unable to go on paying his lawyer back in 2004, I wanted to help him hire another one but could not afford to.
Shortly after Christmas of 2005, David told me that Alice had informed him that they were divorced. David said, “How did this happen, would they not notify me?” David asked his cousin to do a search on the computer. That was where he found out the divorce hearing was on October 19, 2005. He had a hard time believing that he was divorced, and that the divorce was finalized without him being notified. Alice had never said anything to him about the hearing, even though she had often communicated with him regarding the children since the end of August. David withdrew from talking to me about personal matters.
Why did David never learn about the divorce hearing, before it or even right afterward? Whatever the answer is, the facts that I know are very troubling. An affidavit by Alice’s lawyer says that he “served” the divorce documents on October 4 by sending them in regular mail to my address (using the partly incorrect address that I mentioned above). But no such mail came to my home around that time. When the trial date was approaching and this lawyer had received no response, why did he not use any of the legally proper ways of serving documents? He had to know how unreliable ordinary mail is for something as sensitive as legal matters. My name, address and phone number have been listed in the directory for years, and like most people I had an answering machine. All he had to do to contact David or me was to pick up the phone. But we have already seen that he had always avoided giving David any advance notice of any court hearings.
In 2006, David first saw and read the Divorce Order that was done by the divorce-trial judge in Red Deer. This copy was obtained through David’s new lawyer in Edmonton. This divorce order still did not change child support. It again disregarded David’s income as it had been stated in the consent order of April 2004 ($50,000) and instead used the amount ($89,000) stated in the Ex-Parte order of January 2004. No dollar amount was set for extra child expenses, only an order that they be proportional to the two parties’ incomes. But the spousal support was revised up to $500.00 from $240.00. Again this was all done without Alice having to produce any financial records, even David’s 2002 income tax return that was the original basis for deciding the amounts of child and spousal support. (I understand it is highly irregular for a court to change the amount of spousal support which the two parties have agreed to in a consent order, earlier accepted by a court, without the other spouse even knowing about the change.) This order also required David to pay Alice court costs in the amount of $1,000. Finally, Alice was granted permanent sole custody and sole guardianship of the children.
The hearing before the trial
In 2010 I ordered trial transcripts to find out what happened, and learned many disturbing new facts. First of all, there was a court hearing on October 17. Even the documents I later found in the court file, which Alice’s lawyer claimed to have sent David by regular mail, do not give notice of a hearing on that date, just of the divorce trial on the 19th. On the 17th, Alice’s lawyer insinuated to [Justice X] that David’s whereabouts were unknown, saying “he’s not around” and even “he [David] hasn’t shown up [for the hearing]. We didn’t expect he would”. Since he had not sent David any notification of any hearing for that day, this remark was evidently meant to deceive the court. I am told that this hearing appears to be an ordinary pre-trial conference. But I am also told that if so, there should be a document in the court file titled “Pre-Trial Conference Form.” No such document exists in the file or is recorded in the court’s Procedure Record.
Most of what the lawyer said in this hearing was about the cashing in of David’s RRSP and pension. Because David was “not around” (for a year and a half?) to sign a roll-over form giving them to her, he said, and because the insurance companies were insisting on receiving the form, a new court order was needed that would by-pass that standard requirement. Alice’s lawyer did not claim that he himself had sent the form to David, or that he had done anything more than take Alice’s word that she didn’t know where David was. (It may be that she avoided giving David the form because she didn’t want her lawyer to know she did know where David was.) [Justice X] agreed to make the new order. But no record of any new order regarding the pension and RRSP is in the court files. What happened instead is recorded in no documents now available. Alice was later able to get the RRSP cashed, seemingly without it being first “rolled over” to her ownership. This is evidently tied to the fact, discussed below, that she subsequently declared the money on tax forms (for 2006) as his income rather than hers.
This judge asked no questions to find out whether David had been properly served, or served at all, with notice of any divorce hearings. Instead, he kept demanding that the whole matter be settled by “desk divorce”, meaning that there would be no trial for the divorce—and that David would definitely not be notified until it was all over. The judge’s reason for this was that a Statement of Defence had never been filed for David. As I noted earlier, his first lawyer failed to file one of these. I am sure David never knew that someone divorcing who does not file this can be “noted in default”, and then a divorce decree can be issued without the person’s consent. At the end of this hearing, [Justice X] and Alice’s lawyer agreed that there would be no trial. But that is not what happened. For reasons explained nowhere in the transcripts or other court documents, the divorce hearing went ahead with a different judge on October 19.
The divorce trial
Unlike [Justice X], the divorce-trial judge asked Alice’s lawyer questions to determine whether the rules of court had been followed. Asked why David was not present, Alice’s lawyer said David had been substitutionally served through his mother, not mentioning that it was “service” (if he actually did send it) by regular mail. I can only guess, given a statement by the divorce-trial judge that I will quote below, that he had read this lawyer’s affidavit of service too quickly to notice that documents were not served the standard way. Alice’s lawyer again made unsubstantiated allegations of continuing drug abuse by David, evidently using them to make it plausible that he would not show up for his own divorce trial. He said that David “seemed to get into the drugs and -- and withdraw” from the divorce process. So he insinuated that it was drug use, not this lawyer’s own plotting from the very start, that had kept David from being present in court all along.
Alice’s lawyer tried to get the divorce-trial judge, too, to modify the consent order to allow for cashing of the RRSP and the pension without David’s signature. He said: “I kind of briefly spoke with [Justice X] about this on -- on --at 1:30 on Monday, when we mistakenly thought it was supposed to -- to be heard.” This too is baffling. By ‘it’ he seems to mean the RRSP cashing-out problem, but there is no mention in the Monday transcript of any mistake in regard to that hearing . And Alice’s lawyer did not tell the divorce-trial judge that [Justice X] had agreed at that time to write a new order regarding the RRSP.
Unlike [Justice X], this judge refused to grant the lawyer’s request for a new order about the RRSP, saying “I have no letters from the bank. I have no details of the requirement…. I have heard no evidence, and you made no opening submission in that regard.” But lack of credible evidence did not keep the divorce-trial judge from making other destructive decisions that day.
Alice’s lawyer also claimed that David’s behavior had “caused extra [court] costs for our client”. Unlike [Justice X], the divorce-trial judge challenged the lawyer to say what the alleged expenses were. Then the lawyer compounded this fabrication with another one: He pretended that the expenses for this hearing included “the process server”. Since there was no process server, just regular mail, this claim surely helped to create the judge’s later conclusion that “the plaintiff did the best she could to serve [David] with notice of the trial”. There had been a process server for the original ex parte order, and the lawyer mentioned the original ex parte “Statement of Claim for Divorce” among the costs he was now seeking for this hearing--just as if those earlier costs had not been ordered already. (They were unjustly extremely high, as I noted earlier. I am told that those original costs of $2,000 were a material fact that Alice’s lawyer had a duty to the court to tell this new judge about.) But this judge did not challenge him on these further claims, and her lawyer quickly changed the subject.
Alice’s lawyer also claimed that drugs had impacted David’s ability to make money. And Alice told the judge, “when he sobered up and he was working, I would get something here and there”. But in spite of all this, her lawyer focused on David’s income from 2002. (Remember, it was his all-time high, made when he was trying to recover after bankruptcy.) The lawyer said that that figure, not $50,000 or any other level, should now be used to determine the ordered amounts for child support and spousal support. (To explain the discrepancy in the consent order between David’s stated income and the amount ordered for child support and extra child expenses, he falsely told the judge that David had accepted the child support being based on an income of $89,000 a year, but had still bizarrely insisted that his income be stated in the order as $50,000 a year.) As I said above, the divorce-trial judge just went along with the $89,000 amount.
A legal scholar has pointed out to me that addiction is treated as a disability by Canadian courts. This would not exempt a person from owing child support, but it would seriously affect his income and so would impact the amount he was expected to pay under the guidelines, at least for spousal support. So allegations by Alice and her lawyer that drug and alcohol dependency kept David from working should have led her lawyer to request no spousal support at all. And on these same grounds, the divorce-trial judge should have denied Alice’s actual requests. Instead, as I also said earlier, this judge even doubled the amount of spousal support that had already been consented to by both parties.
Just as disturbing as what her lawyer said that day is what Alice said when she testified on the stand. At one point her lawyer said to her “[David] is currently using drugs, you believe.” That is what she had said in her recent sworn affidavit, but suddenly she sounded a lot less sure of it. She said “I don’t know. I -- I mean, he hasn’t contacted me or my kids since March….” When asked “Do you have any idea what city he’s living in?”, she answered “No”, and later said “I can’t find him, and I really don’t want to waste my time looking for him. I have better things to do, like raise my kids.”
Reading these words from the October 19 trial angered and saddened me all over again. I have already written here that David had been seeing the children every other weekend for weeks since Alice had moved in with her mother in Edmonton. Alice had even phoned him at my place in September to crow that she got another court order without his knowledge. I felt more sure than ever that not letting him know about the divorce trial was somehow deliberate, set up by getting permission in a second ex parte hearing to serve my son by regular mail. I have personal knowledge that she was lying when Alice said under oath that she didn’t know where David was. But she may have felt no one else would ever find out what she said in court that day. In what looks like a momentary slip, at one point she said “he just stopped working in the industry and moved in with his mother”. Since documents show that David had stopped working in the oil patch only a few months before she said those words (though in fact he had lived with me long before then), Alice came close here to admitting knowing that he was living with me still.
In what seems to have been an effort to get Alice’s spousal support amount raised, her lawyer asked about her current financial situation. She said she had been earning $36,800 a year working for a different banking institution than before. Her lawyer asked “what is the reason that you’re not employed now?” She answered “I was struggling financially living with the mortgage in [Town X] on the house that we owned, and I decided to move in with my mom…help her out with bills and help me out with bills, so I quit my job here in Red Deer and moved to Edmonton.” She added “I’ve started looking for work now”. (A close family member of Alice’s later told me that she did not quit that job but was fired from it.) Because I have long known her extended family, I can attest that Alice’s mother was well off and had no need for Alice to “help her out with bills”. I also know from David’s bank statements that the mortgage payment on their home a year and a half earlier was only $710.98 per month.
As Alice’s lawyer knew, this is very different from what Alice had said in her ex parte affidavit six weeks earlier—after she had already left her job in Red Deer. Her words there were “I have been working very hard to support our children, and have saved up funds to take the children on a holiday to…California or Florida”. She did not tell either Justice Sirrs or the divorce-trial judge that she had just sold their home (and that none of the equity had gone to David). Instead, she said in court that after she found employment, “I’m hoping to build up a down-payment.” Alice’s lawyer should have known about the large profit from the house which I noted earlier. Why would she need to build up a down payment, and why would he allow her to make such claims of poverty under oath?
Alice’s lawyer also knew, if he ever read the MEP statement Alice had attached to that same affidavit, that something else she said under oath was deliberately and seriously misleading. During the year between the consent order and when David quit working on the rigs back in the spring, MEP had collected a total of $11,585.44 from him. But when her lawyer asked what financial support she had received from David, Alice said nothing about this. Nor did she mention the thousands of dollars he had given her voluntarily before the consent order. Instead, that is when she said to the court, “when he sobered up and he was working, I would get something here and there”, and she specifically mentioned only the $360 a month that she was now getting. (Which was then coming, I assume, from his unemployment cheques.) In fact, she claimed he had told her he’d been jumping from one oilfield company to another in order to avoid Maintenance Enforcement. With no one in court to contradict her, she could tell any stories she wished.
Alice’s lawyer did one more thing that day which, at the very least, was highly suspicious. In the course of being asked about her needs and David’s ability to pay, Alice was saying, “I -- I was in debt quite a bit, so now that I’m out --” when her lawyer cut her off in mid-sentence. He said “Okay, thank you”, and addressed the judge indicating that he had no further questions for the witness. Why did he stop her, and do it so abruptly? Were her having been in debt and now being out of debt not highly relevant to what the hearing was about? The reason or reasons for being in debt and then out of debt, and the time-frame involved, could have revealed facts about both her needs and David’s payments. Or else she might have been unthinkingly on the verge, as Alice’s lawyer should have known, of talking about the massive debt her gambling had generated. And this could have led the judge, this lawyer would have known, to ask questions that could have exposed not only her bad behavior but David’s hard work in getting her out of all that debt. That in turn would have destroyed their carefully orchestrated picture of David as just a drug-addled deadbeat. We will never know what Alice might have let slip out. And there was no one in court to demand that information from her.
After the Divorce
David struggled emotionally that fall and through the year 2006. The children would ask him, “Dad, when are you going to get a place of your own?” I was worried about him. David always had an exceptional memory but during our talks he told me he did not know what was happening to him. David said his mind would not focus and he misplaced simple things like his keys. I told David that this is a common thing that can happen to people during emotional crisis. Their minds can shut down because of the stress.
On March 11, 2006 I found David on the kitchen floor. He could not move so I helped him up and took him to the emergency room at the St. Albert hospital. David followed up with my doctor, Dr. Won g. David was to go to physiotherapy sessions, but these sessions were not covered by medical. So instead, David often used ice packs for his back. This was from an old back injury that had happened in November 1996. This was another reason for not working on the rigs with their heavy lifting. But I believe he did go back to them for a while after his unemployment ran out.
Because of problems such as these, in 2006 David tried to find work outside the oil patch. He took training courses for various kinds of work. At various times he found work with Sinclair Supply, Jetco Mechanical, Leon’s and Mr. Lube. But none of these companies paid enough for his $1,667 a month ordered payments. He tried to get a job close to home and bike to work because he had not been able to afford a vehicle. MEP had a garnishee on his wages since 2004 and he kept getting further behind in his MEP payments. The amount of support he had been ordered to pay in 2006 was $20,004, and David’s total income for that year was under $11,000 because of all his work difficulties. Yet the amount MEP took from him during this year was $8,378.17. He had virtually nothing to live on.
So David needed to go to court and change the court order to reflect his actual financial situation. Lawyers’ costs are extremely high; they can run $50,000 to $80,000 for a difficult divorce. David thought that he would never be able to afford continuing battles in court. David then decided to try and get a lawyer through Legal Aid. It took two months and entailed hours of phoning, obtaining the required paperwork, and meetings with Legal Aid. He had to prove to them he did not have any assets or the means to pay on what income he made. Legal Aid appointed df as a new lawyer for David.
On May 23, 2006, David got the court proceedings moved from Red Deer to Edmonton. On July 20, 2006 his new lawyer filed David’s affidavit and a Notice of Motion to Alice to start court proceedings to change David’s payments to reflect his actual income, and to reduce or eliminate the arrears that had built up due to the earlier injustices. This lawyer promised David to try to get the court to cancel the arrears owed to Alice altogether. (That is seen from the later Notice of Motion and from the letter this lawyer then sent to the court.) David’s affidavit to the court disputed the allegations submitted by Alice in her affidavit for the original ex parte order of January 19, 2004, and he attached documents to give proof.
In reference to the allegation about his income in that first Ex-Parte Order, David stated that it was correct for the year 2002, but that his income had never been that high since. David attached copies of his income tax forms. His income for 2002 was $89,000, in 2003 it was $60,743, in 2004 it was $46,000, and in 2005 his income was $45,668. (The 2003 amount was left off from David’s affidavit, perhaps because at the time he had not yet received a copy of the filed form.) He gave copies of receipts and bank statements as evidence that he never left Alice without financial support from him. Included were documents showing that his paycheck was $3,809.98 in December 2003, just after they separated, and showing that it was paid toward household expenses in the month before she went to court.
Regarding the Consent Order done on April 2l, 2004 David stated he had just moved out again after a brief reconciliation with Alice, and he said this order was improper because it had not changed his child support payments despite changing the amount of income attributed to him. David said he consented to this order but was never properly credited for giving his wife all the family assets, including the 1995 Neon car, the truck, household property and equity of about $70,000 in the matrimonial home. (As shown by the mortgage and Land Titles documents, the difference between the original mortgage and the final sale price was $69,750.) Based on the information David gave, the total matrimonial property his wife received was worth around $116,000. This means that about $58,000 should have been credited against his (already far-too-high) support payments, rather than the mere $1,980 that the two lawyers’ consent order had credited him for.
David’s affidavit also said that he had tried to go back to work on the rigs, but felt he could not do so because of the prevalent use of drugs and alcohol in that environment. He was afraid that he might be drawn back into substance abuse himself. David stated, “I live with my mother and I am hoping to get on with the post office. I do not have any other education than high school. I cannot work on the rigs, as I truly believe that type of work has ruined me mentally and physically.” He did not mention his physical injuries and physical fears. But he said these things to explain why he could no longer make $89,000 a year.
David stated his wife worked as a loans officer at Capital City Savings when they were first married, and that she went to work at the Alberta Treasury Branch after they separated, resuming her banking career. He said Alice then went to work at yet another banking institution, and though on medical leave at that time to have a hysterectomy, was scheduled to return soon. David said that the children had not been in daycare since August 2005. All of this explained why Alice did not need spousal support or special expenses for the children.
I must repeat that David loved his children, and was with them as often as he could be. When Alice had her hysterectomy in the summer of 2006, David looked after the children and even took them up to the hospital to visit with her. But Alice never returned to work and on January 23, 2007, six months after David filed his affidavit, she went on Welfare. My understanding is that she has been on Welfare ever since.
For reasons I do not understand, it took a year and a half after David hired his new lawyer, and nearly a year after David’s affidavit was filed, for David to get a court hearing. Various court dates were arranged but subsequently canceled. But my understanding is that, had David’s new lawyer pressed the issue, it would not have taken anywhere near that long to get into court.
David’s lawyer notified MEP of all the scheduled court dates. Because now Alice was on Social Assistance, MEP’s involvement was intensified. This lawyer led my son to believe, David told me at the time, that any financial examinations by MEP would be put on hold until after they finally got a court hearing to revise his ordered payments. That is why David was surprised when, in January of 2007, he received a copy of a Statement of Finances to be completed by him and a Notice to Attend an MEP Examination of Finances scheduled for March l, 2007. His financial situation had not changed. MEP was garnisheeing his wages and they knew where he worked. David had given all this information in previous Financial Statements.
To deal with this matter David went into MEP’s office and entered into a payment arrangement with an MEP representative soon after receiving the Notice. The worker he spoke with agreed to a new amount of $63l.00 per month to be garnisheed, less than the amount of $1,000 which MEP had been garnisheeing. This was to allow him more time to get into court to vary his order.
To have this arrangement, David gave MEP proof of his pay cheques from his employer, which showed he was not making huge amounts of money. He told the worker his lawyer was hired through Legal Aid. David told them he did not have any credit cards because of the bankruptcy. He gave them a bank statement, and MEP had all his tax returns that would have been filed as of the date he went there. David was happy that MEP gave him a break.
Because of having done this, it appears, David did not realize that he was still required to attend the financial examination ordered for March 1. (In later years I wrote to MEP asking about these events. I was told that David had been served twice with a Notice to Attend, once after he visited their office, and so should have known he was still required to go. But a double service seems very unlikely given MEP’s practices, and in all their court documents there is mention of only a single service of this notice. Based on these facts, and the fact that when I wrote MEP I had confused the date when the notice was written with the date when it was finally served, I believe this idea that there was a second notice of the March hearing was just a misunderstanding.) Anyway, David was working in March and he desperately needed this money before spring breakup, during which time the rig shuts down. David had already missed work in February because he took time off to attend a court date that his new lawyer had never notified him was cancelled. (Clients with MEP have lost their jobs because they have missed work to attend Financial Hearings. Employers are not legally allowed to do this, but excuses can always be found.) Nevertheless, David should not have gone to work that day, because his failure to show up at MEP’s office had dire consequences.
After David did not go to the MEP office on March l, [MEP Officer A], who worked for MEP as a Senior Financial Examiner, wrote an affidavit in support of a court application for an Order to Compel Attendance, to make David come and present his financial situation to MEP. This MEP officer wanted documents respecting David’s employment, income, assets and financial circumstances. Basically, the requested documents were records that David had already given to MEP. But by listing them in his affidavit, and by saying nothing about David’s earlier visit to MEP, this MEP officer made it appear that David had been refusing to provide any such information at all. This person also indicated in this affidavit that David was in arrears in the amount of $44,475.66. He said nothing about all of David’s earlier payments or the special arrangements David had made to pay MEP. He said nothing about the evidence in David’s 2006 court application about how far out of line with his income the support payments were, or the huge amount of property value which had never been credited to David. Instead, this MEP officer made it appear to the court that David was simply a deadbeat.
These documents were filed in court in April by MEP lawyer [Lawyer D], and on April 24 the Honourable W.E. Wilson granted the Order to Compel, which demanded David’s attendance on June 26, 2007 at MEP’s office. Later that year, in November, the same MEP officer filed an affidavit with the court saying that he had served the order on David. The date he gave for having done this was June 5. I was not aware at the time that David had received this document. Meantime, on April 25 David’s lawyer filed another Notice of Motion for a court hearing to revisit David’s support payments. The date requested for the hearing was June 6, 2007, and this hearing did not get postponed.
The MEP lawyer mentioned above works as legal counsel for MEP in connection with representing the office of Income and Employment Supports (Social Assistance). She wrote the court a letter on May 30, 2007 regarding the up-coming court hearing for revising David’s support order. She stated, “I will be in court on June 6th and I will represent Mr. DaCosta, director of MEP and the Director of Income and Employment Supports.” She informed the court that David owed $4,121.12 to the Crown. (Which is how Social Assistance is referred to in this setting. Money paid by them to individuals on welfare who are owed support money is recouped from support payments made to MEP.) This amount included $350.00 owed to the Director of MEP in default penalties. MEP was doing this in order to oppose reduction of this part of the arrears. As I will shortly explain yet more fully, the injustice of David’s court orders was far too great for there to have been any arrears or default penalties legitimately owed to the Crown.
The MEP lawyer’s letter also suggests that she would oppose lowering his future support payments below what MEP thought they should be. She had no personal knowledge of David’s current emotional or physical condition, but her letter stated that he had the ability to make $89,000 per year. It also said that he was unemployed, which could have strengthened the impression that his arrears were deliberate. (Actually--as the letter by David’s new lawyer noted--David was employed, but his employer had had no work for him for over a month. He had been working again in the oil patch, at a particular job (well testing) that did not involve the stressful and dangerous conditions he hated on the rigs.) The MEP lawyer’s letter further said that David had “not provided any information with respect to his income for the year 2006”. (As I said earlier, in January he had taken his pay stubs for 2006 to them. They were the only 2006 records he would then have had.) The letter did not mention that MEP had long been garnisheeing his wages, or that in early 2007 MEP had agreed to take the lesser amount of $631.00 per month until David could get into court to change his order. Like the affidavit by the MEP officer, this letter left the impression that David had been avoiding MEP and avoiding his legal obligations.
A copy of the MEP lawyer’s letter was sent to David’s new lawyer. But I have no way of knowing whether his lawyer was informed about the court order for David to attend a financial hearing at MEP’s office. When I asked MEP in a letter in 2010 whether they notify the lawyer about such orders, they gave an answer involving whether the lawyer is served (not merely whether he is notified). They said: “If the debtor has a lawyer and his or her lawyer agrees to accept service on behalf of the debtor, MEP would serve notice on the debtor through the lawyer.” Since MEP was then in touch with David’s new lawyer, this seems to imply that they asked him to accept service but that he did not agree to accept it. In any case, David surely was not told that he could or should have a lawyer at the ordered MEP hearing. Neither of the documents MEP served on him contains that information. If a lawyer had attended that MEP examination with him, as I will discuss later, things would likely have turned out very differently for David.
The new court hearing
To explain certain subsequent events, it is necessary to tell what happened regarding David’s 2006 tax forms, which normally would have been filled out and filed before May of 2007. When Alice volunteered to do David’s income tax for that year, he gave his forms to her. David felt they were getting along at this time and felt he did not have extra money to pay H&R Block. David did not want to ask me for more money, and it did not seem an unreasonable thing to do because the divorce rules required each of them to give the other a copy of their return anyway. Then David asked her several times for this completed tax form so he could sign it and mail it, but she did not give it to him. She always had an excuse.
I regretted later that I was not present at the court on June 6, 2007 with my son. I was in B.C. with my mother, who is 94 years old. I trusted that his lawyer would do the best he could on David’s behalf, but was I wrong. Later I found out my son never had his day in court. Based on my later conversations with him, all of the material in David’s affidavit, especially that about the many family possessions he had been given no credit for in the consent order, was ignored. David had waited so long to correct the injustices done to him, but this did not happen. David was a very passive and trusting person, and he believed the Justice System would treat him fairly when the court finally heard his side of his story. But it never did hear his side.
The court hearing on June 6, 2007 was held with Justice W ] presiding. David was left outside the courtroom. So my description here of events in court is taken from the transcript of the proceedings, which I paid to have typed up and sent to me two years later. David’s lawyer stated to the court that David was available to give voice testimony if anything was disputed. (But this was seemingly said in bad faith. As I will relate shortly, David did dispute something important, but his lawyer gave him no chance to address the court over it.) Alice, however, was in the courtroom. It is definitely not the normal procedure for the client to be left outside. David was not aggressive or prone to outbursts, he was the exact opposite. So I do not know why my son was not present to hear what was being said, and to explain things his lawyer might not know—also, to see whether his lawyer was keeping his promises to David.
Despite a year and a half having gone by since David had a new lawyer, Alice had given him no financial information, and had submitted no affidavit for this court hearing. When it was brought to the court’s attention that she did not have legal counsel, Alice stated that she would follow the MEP lawyer’s lead. Because of Alice’s unpreparedness the judge suggested to the lawyers, “Why don’t we take a 10 minute adjournment and see if anything can be accomplished and, you know, you can help her.” David was present during the ensuing break. What happened there gave David the impression that MEP’s lawyer was also Alice’s lawyer. That is how he labeled MEP’s lawyer to me afterward, and how he describes her to the MEP officer discussed earlier here, in a transcript from later on when recounting what happened in the discussion outside court that day. I believe that all this made it that much more difficult for David to defend his interests in that meeting .
One of the things that happened in the discussion outside of court, as David related it to me later, was debate over David’s income for the year 2006. David had his tax forms for 2004 and 2005, for which his income was $46,272and $45,668. MEP’s lawyer had David’s income tax forms for the years 2002 to 2005. But she said she would not accept David’s T4’s for 2006. She said he could be lying about their representing his entire income. And at that time, Alice still had not given David his filled-out 2006 tax forms. David surely would have told them this, but without their being completed, signed and filed, they would not have satisfied MEP’s lawyer. (Alice’s motive for not having provided David’s 2006 tax forms by that late date may have had to do with the fact that she declared the RRSP money as his income on them, not on hers. Yet back in September of 2006, that money had been put in trust for Alice with her lawyer’s law firm. No available records explain how, after all of those court requests by Alice’s former lawyer described here earlier, that would have happened.)
The common practice by the courts, as I understand it, is to base future payments on the payer’s income for the most recent year, on grounds that that will most probably continue to be his income in the year ahead, but when the payer’s income for the preceding three years has varied appreciably, an average of those years is used instead. Similarly, it would seem, averaging David’s income for the three years he had been paying (2004 through 2006) would have been the most appropriate way to retroactively recalculate his support payments for those three years. The average for the three years would have been under $35,000. Because of the dispute over David’s 2006 income, however, David’s lawyer and MEP’s lawyer agreed to disregard that year’s income. I insist that the opinion of MEP’s lawyer should not have decided the matter. Rather than defending his client and even having him testify before the judge, however, David’s lawyer simply went along with her. The two lawyers imputed David’s yearly income to be $48,700 for the purpose of calculating David’s support levels, both retroactive and future. (That arbitrary number was chosen, his lawyer later told the court, to make monthly child support a nice round $700!) Imputing this income for future payments was even more unrealistic than doing so for past ones, given all of the employment troubles David had been having for over a year.
David was depressed and overwhelmed, feeling that his own lawyer had sided with MEP’s lawyer and Alice. David told me later, “What did you want me to do? I could not afford to fire him, nor could I face two more years of paying the existing payments. How was I going to argue with two lawyers?”
The remainder of the hearing
When the court hearing resumed, everyone but David was again present. The judge was told that everything had been agreed to, including spousal support, both retroactive and future, of $100 a month. (This too was contrary to his original court application, which had asked for spousal support to be terminated.) The only thing discussed there was now the arrears on what are considered “extra expenses” beyond regular child support, such as babysitting costs. To repeat, these are supposed to be shared between the parents in proportion to their incomes. David’s lawyer said that somehow that subject had been overlooked in fashioning an agreement outside court. But even now, in the setting where lawyers are supposed to fight for their clients and cross-examine the other side, his lawyer just went along with everything Alice said.
Alice stated that her income in 2004 was $32,741, for the year 2005 it was $24,746, and it was $25,0l3 in 2006. (No one asked her to produce her tax forms.) It is my understanding that, having failed to file an affidavit setting out her claims, she was not entitled to make any claims now. But again David’s lawyer said nothing. The judge decided to set her yearly income for that time period at $26,000. This was based just on her words, which were not even under oath. If this judge would be so lax regarding her income, might he not have accepted those T4’s as adequate evidence, had my son been in court? Or might he at least have scheduled a quick new hearing at which both parties would be required to present all needed financial records?
Alice said she had receipts (but not with her in court) from her mother for the previous year’s babysitting, and that $800.00 to $1,000.00 per child per month was then the going rate for daycare. It is my understanding that courts usually do not count babysitting by grandmothers as an expense for awarding support, especially if, as was true in this case, the grandmother was not taking any time off from paid work to do it. But David’s lawyer said nothing about this. (Back in October of 2005, Alice had told the court “my mom and I have already discussed that she will not be watching my kids. She’s elderly…I will be taking them outside of the home for daycare.”) David’s lawyer was instructed by the judge to look at her records after court to decide the exact amount of David’s share of past extra expenses, based on those records and the yearly incomes now imputed to Alice and David. This amount was later calculated by his lawyer to be $2,688.
All of this indicates that this lawyer, like David’s former lawyer, had failed in his responsibility to get Alice to make a financial disclosure, which both parties in a divorce are supposed to supply from the very beginning. According to court records, after Oct. 10, 2006 David’s lawyer had made no court applications to require her to disclose. (After this court hearing, when Alice turned over her babysitting receipts to this lawyer, she finally gave him certain other financial records.) This indicates that like David’s first lawyer, this one never properly considered the matter of spousal support or extra child expenses. He certainly did not question her about it in court that day. He did not ask her why, given her long history of employment (and her support payment awards for child daycare while she worked) she should have been awarded before, or should now be given, any spousal support at all. I have been told by persons close to Alice that she actually had (and still has) no legitimate medical reason for being on Welfare. I have been told by those same persons that Alice has long been working “under the table”. So I have often wondered whether MEP’s lawyer pursues Welfare mothers about their incomes and their ability to work the way she pursues fathers who have been torn away from their children by the court system.
I repeat that David was not there when his lawyer addressed the court. But again, why was he kept outside? Various signs point to an answer: that even after a year and a half, his lawyer was unprepared to present David’s case that day. For just one indicator, Alice’s statements in court about the income-based reasons for the original daycare support amount ($593 per month) were wildly incorrect, and this lawyer didn’t know enough about the prior court orders to correct her. In fact, he told the court that Alice obtained the ex parte order “in April of ‘04”, and that the consent order “followed a month later”. Seemingly, these errors are related to his improper decision to recalculate payments back only to April 1 of 2004, rather than to January 1.
Finally, David was also required to pay $25 per month to gradually reduce the remaining amount of arrears. His lawyer did not give the court calculations for what those arrears would now be. But based on that $800 per month plus the $2,688 for day-care expenses, the amount David owed from the beginning of 2004 to June of 2007 was $35,488. By that point, the total amount of money collected by MEP (as shown by their records) or paid directly to Alice (that $6,300 discussed earlier, for which David’s lawyer had bank receipts) amounted to $29,568.04. And at the time Alice cashed in David’s investment RRSP, it was valued at $13,892.97. This means that in total the RRSP and pension were worth around $16,500, and his entitled half after taxes would have been around $6,000. So: If David had just been given proper credit for his cash payments and for his half of the RRSP and pension--even ignoring the huge value of all the rest of the marital property that he was given no credit for--David would have owed no arrears at that point in time.
These numbers lead us to the most shocking thing done that day. As revealed by the transcript of proceedings, David’s lawyer told the court that for an “incentive” for David to make these payments, a penalty in the amount of $25,000 would automatically become the amount of arrears if David missed a payment. I was stunned by this. I could not believe his own lawyer would do such a thing. MEP already has powerful penalties to enforce compliance, so why would a further penalty ever be added to any maintenance order? If an order were doing someone an undeserved special favor, then some special penalty for non-compliance might be appropriate as a counterbalance. But this order was not doing David any favors. It was purportedly just setting the support amounts back to what they legally should have been, had the prior orders been properly based on his actual income. So all such a penalty-clause could possibly do was to reverse the correction of injustice that the recalculation was supposed to accomplish. All that any penalty clause would do--never mind one of this extreme magnitude--would be to restore the original injustice that David’s lawyer had promised David he would rectify.
Now, if the recalculation had resulted in David still owing a large residue of arrears, at least there would have been justification for the continued imposition of ordinary penalties by MEP. But the numbers above show that, even if someone were to find reason to quibble over certain amounts, David at that time had no appreciable remaining arrears. So the outrage committed goes beyond injustice: How could it be even sane to add a $25,000 penalty clause when David had already paid, based on the recalculation approved by the judge, all that he was legally required to have paid? If the recalculation resulted in anything remotely like what was legally appropriate (and I have argued here that it was still extremely unjust, because it ignored all of the marital property for which David had been given no credit, and disregarded his actual 2006 income), then that conditional penalty was madness. On top of all this, David’s lawyer knew that David did not have a regular paycheck then. I swear, he knew that David was bound to incur that huge penalty.
As for MEP’s lawyer, it became apparent from a later complaint to the Law Society that she was responsible for that $25,000 penalty. But given MEP’s careful record-keeping and her own knowledge of David’s court orders and financial records, she would have been aware of the extreme disparity between that penalty and any arrears she could have argued still remained after recalculation--the recalculation in which she got her way regarding David’s 2006 income. She knew that the new $25,000 liability piled on David was manufactured out of thin air, and that it was entirely unjust. Yet as an officer of the court, she had a duty to uphold justice. I hold her personally responsible for MEP’s subsequent persecution of my son arising from that unconscionable penalty clause. I relate the details of that persecution below.
Because of all the uncertainty in his employment, I feel sure that David would never have agreed to this penalty clause. If he understood whatever the lawyers said about it in his presence, he went along without agreeing. How could a lawyer, who has a duty to promote his client’s interests, ever have agreed to such a thing? How could a judge, who has a duty to uphold justice, ever have accepted it? As one former lawyer has put it, they were signing my son’s death warrant when they created that order.
And the penalty clause was merely the worst wrongdoing that day. Any number of things could have made the outcome very different, if only David’s lawyer had performed his sworn duty as my son’s lawyer. If only some of the case David had prepared in order to show the earlier injustices to him regarding family property had been presented in court, he might have been found to already have already greatly overpaid. MEP’s lawyer could have been allowed to keep those few thousand dollars in Crown arrears, if that is all she cares about. My son could have been allowed to keep his life.
The judge asked that David’s lawyer file this order as soon as possible. Alice wanted to approve the written version of the order before it was filed. His lawyer said, “That would be fine.” But David never saw it until after it had been filed. In the following months of July and August 2007, David kept phoning MEP and his lawyer for a copy of this order. MEP were still assessing his owed payments as $1,167 per month for child support and $500 for spousal support during all this time. Because of his arrears according to their records, MEP suspended David’s driver’s license on August 21, 2007. He was able to get MEP to let him renew it (he had to pay Motor Vehicles $65). Then they suspended it again on September 24, 2007, and I am unsure whether he was able to get his licence back during that fall.
The new order from the June 6 court hearing was finally filed September l8. David picked a copy up from his lawyer in October. I do not even know if his lawyer was in the office when David picked it up. Even though David’s lawyer was supposed to write up the order (His professional information on it identifies him as the filer), it was signed only by MEP’s lawyer, not by David’s lawyer or Alice or David himself. So in the case of this order, unlike the earlier consent order signed by him, there is now no documentary evidence that he agreed to what was in it. (Later on, despite knowing this document was unsigned by David, the MEP officer mentioned earlier demanded on three occasions to know why David had agreed to it if he felt he could not abide by it. This MEP officer could have known through the MEP lawyer discussed here how David was kept in ignorance of the court proceedings, and known the kind of pressure exerted on David to get him to “agree”.) I read the order when David brought it home. I was shocked and I told David this order was not in his best interests. David said, “It’s done. Nothing can be done about it now.” This order definitely crushed him.
In my mind, the fact that David’s lawyer had neither David’s nor his own signature on this order strongly suggests that he knew David had not truly consented, and that this lawyer was even ashamed to sign it himself. Three weeks after filing the order, David’s lawyer filed with the court a Notice of Ceasing to Act for David. As he was being paid by Legal Aid, the reason would not have been lack of payment by David. There is not even any record that he notified David of doing this. But family law cases tend strongly to go on and on in the courts. So I know of no legitimate reason for his having quit as David’s lawyer at that time.
Not until December 19, 2007 did David get a letter from MEP stating that they had received and processed the new order granted on June 6, 2007. Why did this take them three months after the order had been filed, especially since their own lawyer had been present when the order was made? (MEP later told me that it usually takes 14 days for them to process a new court order. To me this looks like a case of gross negligence on their part, and it contributed to David’s deteriorating emotional state.) Neither this letter nor any other correspondence from MEP told David what MEP had done regarding whether, or when, or to what degree it had changed the amount of his arrears as a result of the new order and as a result of his failure to pay the full amount it required. When I asked MEP about this in later years, I was just told that David could have looked it up on the Web. But David did not use computers, and I do not believe he knew about that possibility.
David made a bad judgment call when he did not show up at the MEP office on June 26 at the Brownlee Building for an Examination of Finances. He may even have misunderstood the relationship between the court hearing and MEP’s role, thinking that the hearing ended the need for him to attend MEP’s office. In any case, David was angry and frustrated after his day in court with MEP’s lawyer, and felt that there was nothing important to give MEP that he had not already given them. He also felt it did not matter anyway, the court or MEP would do whatever they wanted regardless of whether he cooperated. The injustice that was done to him by the Ex-Parte Order in the beginning was never corrected, and no one believed that he did not have any assets, hidden bank accounts, or that he did not own land outside the country. At least, that is how he understood the demands they were making. He was not running or hiding, and he could not comprehend why MEP was doing this to him.
David, because he was a passive person, turned his anger inward. He lost interest in everything he enjoyed previously. He quit reading books, which was a favorite pastime, and he had little interest in anything other than his children’s visits. In the fall of 2007, I would come home from work and find him sitting, just staring into the fire pit in the backyard. By then, his hope of getting on with the Post Office was gone. Despite all of his fears about working on the oil rigs, to get work again David put his name in with various oil companies.
But that fall, the work in the oil field slowed down greatly. Anyone without a driver’s license was definitely not on the priority list to be hired. (Some employers will not hire someone on MEP’s garnished list. This is illegal, but anyone can understand that they would want to protect themselves and avoid all of the hassles.) On a Monday, David would get a call to go to work and his hopes of work would be high, and on Tuesday it would be cancelled. David was so happy when his phone calls did pay off and in December, T NT Company hired him. This job involved only well testing, again avoiding the stressful and dangerous conditions he hated with the oil rigs, even though it paid less money. David had hope again.
But the children were the only bright things in his life. In December 2007, I bought a Christmas tree. My son and I decorated it and bought gifts for the children. The children called the day before Christmas and they were crying, “Mom says we cannot come to see you until you pay more money.” (Note: Not being allowed by the mother to see their children is never allowed by the courts as an excuse for not paying child support. Yet the courts almost never punish mothers for denying fathers visitation with the children.)
I was devastated at the look in my son’s eyes. He wanted to go over to her place, but I talked him out of it. I was always apprehensive that Alice would call the police if David protested her wishes. (I realized then, and have learned much more about it since, the fact that police are quick to act on accusations by custodial mothers, and that malicious women often exploit this to their advantage.) I took the presents and left them with her brother. It was a sad time. It was his last Christmas. To the best of my knowledge, Alice never let David and the children see each other again.
I came home from work on the evening of January 16, 2008. David was not home and there was no note from him. I was worried, but I reminded myself, my son was 37 years old. I received a call from him the morning of January 17. David said, “ I was arrested last night. I am being held at the remand center and I’m going to court this morning.” David said, “Mom, I did not pay MEP enough money.” Section 24 of the Maintenance Enforcement Act allows MEP to apply for a warrant to arrest and bring a person to court for failing to obey a court order MEP has served on that person. (But the section says nothing about jailing the person.) This fact was mentioned in the Notice to Attend that David had received a year earlier. (As I said before, he then went to MEP’s office right away). But it is not to be found in the Order to Compel that was served on him back in June. David later told me that he would certainly not have ignored an order to appear in court. In fact, Section 27 of the Act allows MEP to summons a debtor to attend a Default hearing in court. If the debtor misses that court appearance, Section 29 then allows (but does not require) him to be arrested and jailed until the Default hearing is held in court. But despite all of David’s other cooperation with MEP over the years, the MEP officer discussed earlier here chose to find the most punitive possible way of dealing with my son.
My son had never been in jail before. I told him to make sure he talked to “Duty Counsel” and I would try to get him a lawyer to represent him in court. I knew from working at the Law Court building that there was very little chance of David getting counsel if it was Family Court. Family court is over-loaded with cases. Criminal charges are looked at more seriously and a judge will not accept a plea unless the person has had Legal Counsel. On a Criminal Charge the person is always given bail or released on his own Recognizance unless he is a flight risk or poses a threat to society.
As I discovered later by searching the files, on October 22, 2007, the same MEP officer applied to the court for a warrant to arrest David for failing to appear for that financial examination. (Perhaps by coincidence, perhaps not, this was done right after David’s lawyer had officially ceased to act for him.) In his affidavit this MEP officer writes, “the Respondent [David] has had a MEP obligation to pay since January 19, 2004. The Respondent is in arrears in the amount of $54,416.60 as of October 22, 2007.” This statement was wildly incorrect, being based on the old order. The new order, which was signed by the lawyer representing MEP, was filed on September 18, 2007, and she had approved its contents back on June 6. I have been told that lawyers are bound by rules of due diligence on ex parte applications, even moreso when a person’s liberty is at stake. Surely this applies to lawyers who oversee the officers of MEP.
This MEP officer, by the wording of this second affidavit, again made it look as if David was evading MEP altogether, again not mentioning any of his payments or his cooperation with them discussed here earlier. (MEP’s own records at the time showed that they were continuing to get money from David’s paychecks. He was simply making a very low salary then.) Maybe this is the way MEP always writes its affidavits. But it only tells half the story. This kind of information is very deceptive and misleading. I am told that ex parte applications are especially bound by the rule of “full disclosure”. Telling half-truths, particularly when there is no one present to tell the rest of the story, is a violation of moral and legal principles. Surely this too must apply to MEP and its lawyers. I could perhaps understand this MEP officer’s actions if David had been hiding from MEP rather than going to see them and having his wages garnisheed, if he had never filled out MEP’s forms or given them his financial records or cooperated in other ways. But given what David actually did, I consider this person’s behavior inhuman.
When I searched the court files two years later, attached by a staple to this MEP officer’s documents was a booking-in sheet from the North Division police station. It stated that David was co-operative and gave the location (which was my home) where David was arrested. Also attached was a criminal-background check on David done by the RCMP. (It recorded only minor and mostly long-past misbehavior for which he had been fined.) On the top of this sheet it reads “For Authorized Agencies Only”. My understanding is that these are both confidential documents, and that it is a legal breach for them to be placed on a public file. Are MEP’s officers and lawyers not bound by ordinary rules and laws? In fact, section 15(1) of the Maintenance Enforcement Act says that information received by MEP “may be used only for the purpose of enforcing a maintenance order and is otherwise confidential.”
David is taken before a judge
What happened in court on January 17, 2008, when David was arraigned before Justice V ], I learned in 2009 when I paid for a transcript for the proceedings. (The court charges huge amounts to type up copies of proceedings and $1 per page for photocopies. When I was searching, I witnessed a father trying to obtain his own records to find out what happened in his divorce case. When the cashier said it was $500, he said, “I do not have that kind of money” and he walked away.)
A different lawyer than before was there representing MEP. David was brought in in handcuffs, prison uniform, and without counsel. This lawyer painted a bleak one-sided picture of a dead-beat dad. He stated that David was in arrears of $29,901.l4. (Finally applying the new order with its $25,000 penalty.) This lawyer told the court that David’s last “voluntary payment” towards child support was in December 2006 for the amount of $41.27. I do not know how the judge would understand the phrase “voluntary payment”. But it certainly hides the fact that David had gone into MEP’s office and agreed to have his wages garnisheed at a certain rate. The lawyer mentioned that David’s child-support payments and arrears had been reduced the previous June, then said “even when…he was making his income” he wasn’t making “a significant decrease in his arrears amount”. These words falsely indicate that the payments and arrears had been reduced because his income had decreased, not because they were far out of line with his actual income from the very start. They made it appear to the court that unwillingness to pay, not inability, was the reason for his arrears. And they certainly didn’t mention the unconscionable penalty-clause that was now the reason for nearly all of the arrears.
This lawyer for MEP wanted the court to order David held in custody until January 31, so MEP could conduct a financial exam of him in jail on January 30 and then hold a Default hearing on January 31. There David would have to show why he should not be put back in jail (for another 60 days, according to later words by the MEP officer I have been discussing). I repeat that David did not have legal counsel. On the booking-in sheet I described above, under Notifications & Rights, the police had written that there was no need for a lawyer because David was detained on a warrant.
When asked about his employment, David told the court that he was working and that he just started working as a well tester for TN T. His previous company had not had work for him for months. The judge told David there was not a shortage of employment in Alberta and he was supposed to be supporting his children. David did not do a very good job of explaining his difficulties to the court. But surely the judge in this hearing realized that jailing him would likely mean losing his new job, and with it the ability to make his payments. The judge advised David to get legal counsel before the January 3l hearing, and said “I am going to remand you in custody”. However, her words did not specify how long he was to be held there, or for what purpose.
When David got a chance to call me, he was frantic. I told him to apply for legal counsel immediately, and I would do everything I could from my end. My first call was to that MEP officer, who said, “If you pay $5,000 or give me some assets, I will have your son released to go to work.” I called Mr. ay, who worked for the Solicitor General. I was told he does not deal with MEP orders. I called the Ombudsman office. Their male representative told me their office does not deal with anyone contesting court orders. He said to me, “Have your son file a complaint with us when he gets out of jail.” The Human Rights Commission does not deal with Family Court. They told me to call the police. I called the Kensington Police Department. A constable who had been in the force for 28 years told me that they pick up MEP violators all the time and they do not like arresting fathers, he does not understand why the Justice System allows this.
I called David’s recent lawyer. He did not believe me when I told him that David was incarcerated on a MEP matter. He was very rude and told me to show him proof that it was a MEP matter and not a more serious charge. He told me to get a copy of the warrant. (As a lawyer, he should have known that I would not be given a copy. I later got one only because MEP’s officer had attached it to papers he placed in the divorce file.) Perhaps this lawyer was unaware that when someone served with an Order to Compel to attend a financial exam does not show up, MEP can get an arrest warrant for that person with no further warning to him. But he certainly should have known that.
I called Justice Minister Alison Redford’s office. I talked to A. Laviolette, who then switched me over to a male representative. After I had relayed the information that my son was in jail on a MEP matter this representative said, “He did not pay, obviously, and it is surprising how much money people can come up with to get their children out of jail. People thank us for collecting money for the children.”
I called many lawyers asking them to represent my son. One lawyer said, “No, I will not represent these guys that go out and make the big money on the oil patch and then they throw their money away. They come here and expect us to get them out of trouble.”
I phoned my MP, Mr. J. Williams. They do not deal with MEP because MEP is under the Provincial Act. I called my MLA, who was Mr. Eggen. His representative, Ms. Chapman, told me to bring any paperwork I had to their office. She was the first person who seemed to care. She said, “I have seen many cases like this.” She called MEP on my behalf. She told that same MEP officer that my son was working, but he still wanted $5,000 to release David. The MLA’s office tried to get counsel to appear for the January 31 hearing but no one was available. I was advised by this representative to do a written court presentation for my son, telling the judge the history of this divorce. (I went back to the MLA’s office with David after he was released from jail on January 31 and that representative had been transferred. Her replacement would not say where. We did not receive any more advice from Mr. Eggen’s office.)
The Financial Exam was held at the jail on January 23, 2008, not on January 30 as the court had been told it would by the MEP lawyer. The same MEP officer as always before and another person, both Financial Exam Officers for MEP, asked many questions about David’s expenses and financial resources. (Unless otherwise noted, that original MEP officer is the one always quoted below.)
Among the questions asked were these: Do you rent? Do you smoke? Do you drink? Give us a list of debts. Do you have property in Alberta? Do you have property in Canada? Do you have assets? Do you belong to a Union? Do you own a cell phone? Have you received any inheritance? How old is your mom? Do you stand to inherit anything from your parents? Are you the sole child? Is your father alive? Is your mom in a position to pay off your account? Do you have a mortgage? How much did you pay your lawyer? Why did you agree to the court order from June 6, if you could not pay? (David answered that he was hopeful he would be able to pay it. But recall that he had no choice, given the guidelines and the high income they imputed to him because of refusal to accept his T4s.) Is this your first visit to jail? How much money do you have in the bank? Do you have RRSP’s?
When the MEP officer could not understand why David was having trouble making these payments, David tried to explain. He told the MEP officer he had 64 cents in his bank account, no assets, except a silver chain he got for Christmas. He said all his assets had gone to his ex-wife. David explained the RRSP was signed over to his ex-wife. David told the MEP officer that she sold their home, and he didn’t get any money from it or from any of their other assets.
The MEP officer asked David, “What I am having struggles with as I am listening to you is that you had a home? “You were up to date on your bills?” David assured him that he was, back before the separation. This and other things David told the MEP officer should have helped him see that the problem with David’s payments was not irresponsibility on his part, but unjust court orders and other serious problems. He could not understand why David’s salary would drop so drastically while he was still working in the same industry. David tried to explain by telling him how little work had recently been available in the oil patch.
Was this a genuine investigation of David’s financial situation and abilities? MEP had a document, David’s filed affidavit of 2006, which contained his testimony on that subject. They had all of the divorce-court orders. They had to know, for just one thing, how monstrously unjust that $25,000 penalty was. So MEP could have inquired into David’s claims that he had lost everything in the divorce action, leaving Alice with large amounts of matrimonial assets that he had worked so hard for years to acquire. They could have inquired into the physical and emotional problems he had said were brought on by his former work and by the traumatic events of his separation and divorce. Even when David touched on those matters in his answers to the MEP officer, he showed no interest in really understanding David’s troubles. MEP’s attitude seems to be: “We don’t care what law injustices might have crushed you financially--that's not our department. We don’t care what other physical or emotional difficulties you may have had because of, or since, your separation. We just want to wring every penny we can out of you.”
David added that he had finally, just recently, gotten a very good job in the industry, this time as a Well Tester. This job had less stress and it was a far better working environment for David. He was only a helper, but it would be just a matter of time and he would work toward becoming a supervisor. The MEP officer said, “Effective immediately, the Director will put a garnishee on kels;d; dsdkkfk for whatever funds you have coming payable to you, we will garnishee it.” David replied, “l00%?” The MEP officer said, “We will garnishee 40%.”
He then asked David, “What are you willing to pay today or this week for me to recommend to the courts to have you released and reappear in my office again because we have come to a reasonable solution in respect to your child support?” David replied “I am not prepared to pay anything because I have absolutely no money.” The other MEP officer said, “You have no one that you can borrow funds from, absolutely no one?”
The MEP officer told David that his mother had called him (the MEP officer) and he had told her to come up with $5,000 to get him out of jail. He told David that now he was going to settle for the amount of $1,000 to have him released. He said, “This is a long-term relationship. The relationship that you are going to have with us, it has got to be a good relationship because I don’t like coming here every three or four months and look at you and say the same things.”
I never read the transcript from this interview until 2009 when I picked up my son’s papers at the my son’s final lawyer’s law office. This interview was 32 pages of degradation of David’s character. And to me, much of it sounds like extortion, especially the attempt to make him get money from relatives. MEP were merciless in their quest for money. But David had no financial records with him in jail. They knew in advance that he would have no such records with him there. So I do not see how they could possibly have called this meeting a financial examination. I would call it something very different.
David phoned me from jail after this interview. He sounded very depressed. David told me MEP was asking again for his financial records, including the 2006 tax return. I was upset with David when he told me he had called Alice from jail, because I suspected that her pressuring them is what had led MEP to get a warrant for his arrest. (I had been wanting to sell my home at that time. She knew this, and may have felt David could get money from me.) David explained that he had to phone her because she had this 2006 income tax return, and it had not been filed yet. David said, “Mom, I could not believe it when Alice said to me on the phone, “I didn’t think they would put you in jail.”
I had been in touch with David’s workplace. I was scared that he was going to lose his job. I believe his boss had had dealings with MEP before, and that was why he was very helpful to David. His employer, Mr. Mahe, was out in the field working so I met with a co-worker in St. Albert. She gave me two cheques totaling $417.59. This was all the money David had earned so far because he had just started with this company. She also gave me a letter confirming that he had a job. The letter said, “The longer he stays in prison the more money he is losing out on.” (When David was released on January 31, after two weeks in jail, he was another two weeks behind in his payments.) I drove my niece over to Alice’s place where she picked up the 2006 tax form. (I did not file this tax return until February 4 because David had to sign it after he got out of jail. Then I filed it by Priority Post.)
David’s second lawyer still had all of David’s records. When I called him asking for David’s file, he told me that to release it he needed written permission from David. This ended up requiring two trips to Ft. Sask. Jail, where David was then being kept, to get his signature. The first time, the wording on his permission paper was not satisfactory for this lawyer to release the information. I was lucky the Director of the jail knew me so I got the papers faster or otherwise, I would have had to do this through the visiting process, which could have taken a week. (Later, David’s second lawyer phoned me asking me to fax back to him a form he’d carelessly failed to file with the court for a year, leading to threats by the court clerks. He was quick to demand things that he wanted.) Then before the January 31st court date, I faxed to the MEP officer’s office David’s income tax returns, his T4 slips for 2006, and the letter from Manulife showing his ex-wife had received the RRSP.
I wanted to pay the $1,000 to get David out of jail but he refused. He said, “Mom, if you don’t pay the full amount of the arrears, they will just keep on doing this and they will put me back in jail.” Later, however, I realized something else. As I noted above, MEP held the financial exam a week earlier than their lawyer had told the court they would. Then since that exam was their justification to the court for jailing him, they had no grounds to keep him after doing it. They did not even suggest that he was a “flight risk”--that he might not show up in court on the appointed day unless kept in jail until then. The only reason I can see for their keeping him there for the next eight days was to try to pressure him into paying. As we have seen, this motive was confirmed by everything that the MEP officer said to David and to me. (Two years later a letter to me from MEP said that the January 31 hearing had been canceled after the January 23 examination in jail, suggesting that David had been released right after that exam. I do not know how the writer could have gotten the facts so wrong. But she must have realized how unjust it would have been to do what the MEP officer actually did to David on behalf of MEP.)
I worked for 29 years in Corrections. I worked at the courthouse and the Edmonton Remand Centre. The Remand Centre was built to hold around 350 people. I believe the population was around 800 when David was incarcerated. Jail is a scary place, unless you re-offend often and you are familiar with the system. You sleep, if you can, in a crowded dorm with 40 to 50 people on a mattress on the floor until the time it takes to get assigned to a cell. Gang members use the phone to carry on drug deals. Stabbings have occurred during fights for the phone. David told me a stabbing had occurred while he was there. Strip searches and pat-downs are done on a regular basis. Everyone is treated as criminals. I was terrified that if a gang member found out that his mother was an officer, he could become a target for gang members. David said to me, “Mom, there is a lot of bad people here.”
I spent the morning of January 31 at the courthouse trying to get counsel for David’s case, which was put over to the afternoon. David had filled out forms for Legal Aid’s help. He did this in jail before January 23, but no one had come to see him. If he had had legal counsel at that time, I believe, they would not have gotten away with holding him in jail. I had written a court presentation for David, and I asked if it could be given to the judge, so he could read it before the court hearing. I was told by people at the courthouse to present it during the hearing.
The MEP officer approached me outside the courtroom before the 2 o’clock hearing. My first words to him were, “Did you get all the paperwork I faxed to your office?” He acknowledged that he had. The MEP officer’s first question to me was, “Why did you go to the MLA?” He said I had no business going to them. “They cannot help you. Nobody can help you. Your son had an easy time in jail because you work there.” (As I noted above, the truth is the very opposite. I was extremely frightened that other inmates would find out David’s mother was a guard there.) I wanted to explode. I was angry and I felt helpless. I gave the MEP officer the two cheques I had picked up at David’s workplace. He took the cheques. (At the continuation of the financial exam on April 8, the MEP officer said “Since this order came into effect in June 07, Mr. Seamans has not made any voluntary payment whatsoever in respect of the order”. I guess even those two cheques were not classified as “voluntary” payments.) I did this hoping it would show good faith, but after what transpired next I wish I had not.
The court proceedings were presided over by Master L.A. Smart. David was brought into the court in handcuffs and prison uniform, which made him look even worse. The MEP officer presented himself to the judge and stated he wished to speak to David outside the courtroom. (The judge said nothing to my son, such as asking him whether he had a lawyer.) He pointed at me to accompany him and the guard. Outside the courtroom with the guard present, the MEP officer held a paper in front of my son. The MEP officer told David, “I am increasing your payments monthly up to $1,000. You sign this or you go back for another 60 days in jail.” I was in shock. My son just looked at me. He signed. (But I do not know the nature of those terms. David was never given a copy of what he had signed.) He had just been bullied out of his legal right to defend himself with my help in open court. And the MEP officer’s real motive for jailing him was once again made perfectly clear.
The MEP officer went back into court. He told the judge that David had consented to MEP’s terms. (To this day I am puzzled that the MEP officer spoke directly to the court, rather than a lawyer from MEP. I was present both times when he did so, and no one was identified as counsel for MEP, even though in the resulting order Master Mr. Smart said “counsel” had addressed him and a certain lawyer’s name is on the record.) The Order that resulted from this January 31 hearing stated: “Upon noting the Respondent appearing in custody and consenting to the terms of the within order it is hereby ordered: The Respondent shall be released on the MEP warrant. This matter shall be adjourned to April 10, 2008 at the law courts. The Respondent shall attend to the office of MEP on March 14, 2008 for a Financial Examination.”
I picked David up that night at the LRT station in Clareview, where the guards from Fort Sask. jail drop them off. I had gone first to the Remand because that is where they are usually released. He was held in custody for much longer than was necessary because of the overcrowding at the Remand Centre. He was transported back to Fort Sask. jail, and was released later that night.
I talked to the manager of Admit & Discharge at the Remand. He had a lot of sympathy for me and said there were far too many of these cases. I told him about the case that had been presented before David’s case that day in court. The man was homeless and MEP had kept this father in jail for 60 days. I knew my son would be on the street if he weren’t living with me.
I went to a certain law office, and I begged them to help my son. The lady at the desk gave me hope and referred me to [Lawyer F], who is a lawyer that deals with family law. I left her all the paperwork that I had from David’s second lawyer.
A Financial Exam was done by MEP again on April 8, 2008 at the Brownlee Building. (For reasons I do not know, it was not held on March 14 as ordered by the court.) Present were the two MEP officers discussed earlier and a third MEP officer, who was Manager of Examinations & Investigations for Southern Alberta. Also present was David’s latest (and final) lawyer. What I describe here is taken directly from the proceedings of this meeting.
The Manager of Examinations opens with: “I will determine who speaks and for how long. No abusive, disruptive, disorderly or violent conduct will be tolerated. Should such events occur, security will be summoned, together with the police, and the person responsible will be removed from the premises and the appropriate criminal charges laid.” Later she stated that David could leave at any time and not answer any questions, but then she would apply to the court for him to answer these questions. If he failed to comply, the director would apply to the Court of Queens Bench for an order committing him to jail for contempt.
When I eventually read the typed proceedings, I was appalled to read their threats. My son had never shown any violent behavior. What would have happened here if David did not have legal counsel? As I said earlier, MEP does not tell their clients they can have counsel. Most people would not know MEP’s tactics and would not know they are allowed to have a lawyer present for an exam. (There was a case in the last few years in which MEP did push a client to the edge during the exam of his finances and he was arrested and thrown in jail, where he spent 60 days and lost his job. This person worked in Camrose.)
David’s final lawyer said, “ Are you trying to terrorize him? He’s – I need him to be calm when he’s answering your questions.” The Manager of Examinations told her “There is zero tolerance.”
The MEP officer opens with, “This is a continuation of the exam that was done at the Edmonton Remand Centre on January 23, 2008.” As this meeting goes on, David’s final lawyer argues with the people on the exam board on its legal aspects. She says that most people do not understand the process MEP carries on in their program and they need legal advice.
It is established that David did not show up on the Notice to Attend March 1, 2007. Filling out their statements for MEP and attending these court-ordered sessions are two very different things, and David did not really understand that until he was jailed. MEP are relentless in their quest to collect arrears, it does not matter if a person loses a job. They must attend no matter how many times they call them to their office. People have lost their jobs because of MEP’s policies and the power they use to enforce these policies with no accountability to anyone.
The MEP officer provided the figures on David’s debt as $21,887.44 owed to Alice, $7,200 owed to the Crown, and $539.32 in penalty fees. The MEP officer said that David had paid $2,406.79 in the two months since he got out of jail. But David’s lawyer would not allow him to tell the hearing that these are facts unless David had had an opportunity to verify them against his own records. Neither he nor she had gone over all the past records to do such verifying. He had never been told he would need to do that. In fact, for whatever reason, David’s final lawyer had just met David that very day, and she had no copies of any key records in the case with her. She had to ask the MEP officer many questions about what had happened up to that point.
The MEP officer said he had an incomplete statement of finances from David. David’s final lawyer replied that David couldn’t complete it because at the time he was in jail with no access to his records. More seriously, David noted that when he left the jail, the jailers had not given him the other papers the MEP officer had left with him. David also had no written record regarding which financial documents the MEP officer had asked him at that time to supply to MEP.
As a consequence, the documents David had with him at this April meeting were not adequate for the MEP officer. He wanted documents from Manulife showing that the RRSP was collapsed and paid to Alice. He wanted to know whether it paid for matrimonial settlement or if it was in respect of child support. In fact, these are examples of the many things he was then demanding from David that MEP already had. They had the original Consent Order (to do their job of enforcing court orders, they have to have them), which tells how the RRSP money was to be allocated. And remember that in January I had faxed the letter from Manulife about the RRSP to the MEP officer. But since the documents the MEP officer wanted were not present and David’s final lawyer would not proceed without them, The Manager of Examinations adjourned the financial exam until April 24, 2008, saying she would have the court postpone the April 10 default hearing until after April 24.
At the Default Hearing April 10, 2008 before L.A. Smart, MEP was again represented by the first of their lawyers discussed earlier. The hearing was adjourned to June 12, 2008, because David wished his new lawyer to commence a variation application to change his order from the June 6, 2007 hearing. Now that he had a lawyer who seemed willing to fight for him, he wanted to try once more to get an order that was just. The court did issue a warrant for David’s arrest to be held until June 12, 2008. (I believe this was to make sure that David showed up for the financial hearing set for April 24. If he did not, MEP would arrest him and start all over again.) Apparently, however, his lawyer got the April 24 exam put off yet again.
At the hearing before Justice Wachowich dated June 12, 2008, the default hearing was adjourned to September 11, 2008. The warrant to hold David issued on April 10 was vacated. I liked David’s new lawyer, but she postponed many hearings. Almost a year after my son got out of jail, nothing had been done, not even the financial exam that was hanging over his head.
I believe it was late August 2008 when David did a draft of an affidavit with his lawyer, another one meant to get his arrears lowered. For reasons I do not know, no fiinal version of his affidavit was completed and no notice of motion to lower the arrears was ever filed at the court.
This affidavit showed that David had become bitter. He stated, “In giving the Plaintiff an extra $54,207 in property, I received nothing in return other than persecution by the Plaintiff and MEP for orders that were wrong and in fact draconian in their penalty provisions. I was unaware that I had other options. I was never able to get on my feet after giving the Plaintiff all the matrimonial property, a total of $113,114.38. I don’t believe her need was proven through tax returns or budgets, as in this entire time I have never seen a tax return from her proving her income.”
The year 2008 was the beginning of the end. Jail, court schedules, financial exam hearings, and bills from Legal Aid for $4,000 were overwhelming for David. Work remained scarce. David had lost his zeal and went half-heartedly when he did have work. Without the children in his life, there was little to make going to work worthwhile. My son was looking old. He was now 37 years old, and when this all started at 32 he had his whole life ahead of him. He tried to make a joke: “Mom, when I retire, I will be lucky to be able to have a sandwich. They will take my Old Age Pension, and my Canada Pension. I have worked all my life for nothing.”
He started having nightmares and he told me he had a dream something had happened to me. He was not sleeping and watched TV until the wee hours of the morning or he would sit staring into the fire outside in the backyard.
I, as a mother, felt sick. I must mention that I had previously gone to a counselor, who was available through my workplace. I told her I needed help for my son. This counselor told me to go out for a nice supper and treat myself and get my hair done. I guess I was too thin and my hair is a mess, but I know what she was trying to tell me, that I should look after myself. I phoned the Suicide Help Line and they basically wanted to know if I was going to commit suicide. I wrote letters, but I had no one to send them to.
TN T, the company David was working for, had had no work after the spring break-up. My son’s co-worker, Becky, confirmed this. She told me that she was working in their office because she had bookkeeping skills. Becky said she preferred to work for that company but there was no field work available for them.
In June of 2008, David went downtown and applied at a temp agency for work as a causal labourer. He met another construction worker who had a truck. David went to work for him. He would pack a lunch, leave early and come home around 6 or 7 in the evening. I did not trust this person and I was not surprised when the cheque he gave to David from Masters Stucco & Stone for $167.80 bounced. David said, “Mom, now what do I do?”
I took David to drop resumes off to apply for jobs. Once when I picked him up I asked him, “How did it go?” He said he didn’t have any luck getting a job, he had no luck in court and he just didn’t care anymore. I told him, “If you give up, how am I going to be able to help you.” David replied, “It has been eight months since I had hope of ever finalizing anything this time. Last time it took almost two years to get into court. It is wrong. I do not have a life.”
When David entered the agreement with MEP to garnishee $1,000 per month, David’s driver’s license had been reinstated for one year starting on February 4, 2008. On October 17, 2008 he received notification from MEP canceling his license. Another letter dated October 17 from MEP said that his license would be cancelled in 21 days. (Note: MEP have been given the power by the government to cancel licenses for driving and hunting. MEP also put restrictions on registrations of vehicles. MEP does not always notify their clients of these actions in advance. This can result in their vehicle being towed and a $2,000 fine imposed when the client does not know that he does not have a valid driver’s license. The Justice System gives more leeway to impaired drivers. People on house arrest for serious crimes are often given their license to drive to work.)
On September 18, 2008 a request for a Statement of Finances came and another one on October 03. This was despite the fact that his lawyer had gotten MEP to delay the financial exam. These letters contained strong language warning of “serious consequences” for failure to fill them out. David said, “Mom, I am going back to jail.” He had lost faith in the Justice System. In spite of all his financial difficulties in 2008, the amount MEP collected from him through August was nearly $8,000. This was more than enough to make reasonable child support payments, but not to pay against that totally unjust $30,000 in official arrears—and it again left him almost nothing to live on. His situation was so hopeless.
In September, David went back to Lanco Oil Drilling because they had work. My son expected me to be upset because he was returning to the drilling rigs. But at this point I just wanted him to work. Early in October, David bought an older car with money he made at La nco and asked me to register it because he could not. MEP had put a restriction on David’s registrations at the motor vehicle branch. I told David that he was not thinking clearly because MEP would soon pull his license again. David said, “You don’t have to give me an answer right now, think about it. I am going to look for a place to stay and I have a job doing renovations. I cannot live with you forever.” He smiled and hugged me. He said, “I am happier than I have been in a long time. Don’t you worry, I will be okay, I love you.”
Denial is powerful and I desperately wanted to believe him, but with all that had transpired I knew in my heart he was not okay. I felt helpless because I did not know what to do to help him anymore. Who was going to help me stop this?
In October David phoned me and gave me the telephone number where I could reach him. He was temporarily sharing a basement suite with a guy he had known before, and he was doing renovations on a home a few blocks from this place. David came back home to pick up his mail on a daily basis. Sometimes I was at work and my niece would tell me that David had been home that day and sometimes I was at home when he came. David told me he was calling his lawyer and he said he had made an appointment with her. This was confirmed later by her. Usually the letters from MEP were opened and laying on his bed. David knew his lawyer would have to get him into court soon or he was in trouble.
On October 28, my son called me and said, “This is a bad day for us, mom.” He said he had been out at the graveyard because this was the anniversary of his brother’s death. I breathed easier when this date had passed.
One day in November, David called my niece to come and pick him up at his place while I was at work. He was going to come home, but my niece told me that David changed his mind after she drove over there. This place was not far from my home.
On Thursday, November 20, I talked to my son. He said, “Mom, I don’t feel well”. I told him to come home and I missed him. He said, “I know, mom.” I called on November 2l and his roommate said David was working. On November 22 I left a message. It was Grey Cup weekend. On the 23rd I told my niece that I had a bad feeling and I was going to go and bring him home regardless of what it took.
The police came to my home on November 23. The police said, “We were here yesterday but there was no one home.” I said immediately, “I know my son did not pay his child support.” The officer then said, “No ma’am, I am sorry, we found your son hanging in a stranger’s garage.”
Finding out the last few hours of his life is only from hearsay. I went to the place that he was staying. David’s belongings were in garbage bags in his roommate’s garage. Four blocks away was the home that he had been working on. The resident of the house confirmed this. The old carpet had been ripped up and there was evidence that the floors were being redone. She said that David was very helpful to her because her father was an invalid who lived with her and her daughter. The daughter told me that David had said that he could not live like this anymore. They thought he was going home.
When I asked my son’s friend about the car and said I was looking for David’s ID and wallet, he told me that a guy named Gary took the car to register it for David. Gary never came back with the car. I gave the police the license number of the car, but nothing came of this. David’s wallet with his driver’s license and ID and passport were never found. His wedding picture that faced the wall in his room was gone. Did my son burn these?
The garage that he was found in was next door to the residence where he had been working. An old lady who had dementia occupied this house. Her neighbor, going out on the morning of November 22, saw that this lady’s garage overhead door was wide open. When she returned that evening she noticed it was still open so she called and told the lady’s son that the garage door was open. He went out and found my son and he then called the police. David was there for a day before they found him. I found this hard to believe because that particular alley was always busy with people walking. He died on November 22, 2008. I think he felt he was a failure, and he was “guilty as charged” by the courts and MEP.
On January 29, 2008, I received a letter from MEP expressing their condolences. They stated, “We will not be proceeding with collection action”, but said the money owed to them must be paid first from his estate. This letter was not signed.
I received phone calls from MEP and a man, who sounded like the MEP officer, left a message for me to call them. I ignored these calls. I felt that the persecution my son experienced from MEP contributed to his death and I didn’t want any more dealings with them.
A letter came in the mail from the Dept. of Justice Canada dated April 15, 2009. This letter was addressed to my son. This letter said, “Take notice that on April 11, 2009 the government of Canada was served with a garnishee summons. This summons was served by the following court, provincial or territorial entity: MEP Alberta.”
This was four months after my son’s death.
They stated that he owed $30,272.06 on May 19, 2009. Any moneys that are payable to him would be sent to MEP. He would be charged a fee of $190.00 for this. Examples were Employment Insurance, GST, Income Tax, Old Age, and Canada Pension Plan. A contact number was left for information or to dispute the claim.
MEP forgot to tell the Government of Canada that David was dead.
I had had enough. I went to my new MP Mr. Rathgeber. He must have acted on this. All I know is the phone calls and letters finally stopped coming. MEP did take David’s last 2008 income tax return refund of $1,767.75. David’s income for this year was $15,681.13.
I have found a Support group in Edmonton. This group is called ECMAS, which means, “The Equitable Child Maintenance and Access Society.” I wished one of the organizations that I had called on my son’s behalf had given me ECMAS’s number before my son died. They might have been able to help him, and they might have given him hope that someone does care. I have heard of many more suicides and stories. David’s case is not an isolated one.
I am ashamed of what our Justice System has become. MEP and the courts can persecute the non-custodial parents to no end. In many cases the custodial parents are not made accountable when they deny visitation or try and alienate the children from the other parent. They do not always follow court orders, and sometimes there are no consequences for these actions.
The courts take information that is not correct and they have the power to ruin a person’s life with a stroke of a pen. No one is accountable. Child guidelines are not always followed and the child’s best interests are not always are taken into consideration. How can they be when these decisions are made in 15 or 20 minutes?
Based on many stories I have since heard from others, the Law Society does not hold lawyers accountable. I feel that many lawyers procrastinate with pursuing the case and the client runs out of money. A person’s life is so affected by this delay. Why would it take two years to get into court, unless because a lawyer doesn’t care enough about his or her duty to the client to act responsibly?
The government in Ottawa chooses to turn a blind eye. They state that they do not discriminate and if a parent does not agree with the ruling all he has to do is try and change the order by going back to court. This takes big money.
Newspapers will not publish any of the hundreds of stories. The public is not aware of these atrocities and unless they are involved, people do not know what is transpiring in our Justice system.
My granddaughter and my grandson were present at their dad’s funeral. Who pays the price now? They loved their father and some day they will read his story.
David’s ex-wife, who was capable of making $40,000 a year, now has used up all her assets and I understand is still on social assistance. Why was she not made accountable?
The tremendous costs of putting someone in jail, and of using the courts, is all paid for by the taxpayer. Could not some of this be eliminated?
I live every day in immense pain. My son’s words haunt me, “Quit fighting, nobody cares”.
I do not wish to have anything altered or changed in this story or have this story published or distributed without my permission.
[Author’s name withheld]
In 2010, I found two divorce files at the courthouse, one by searching on David’s name and the other by searching on Alice’s name. This is unheard of; there is supposed to be only one file. The latter file carried the original Red Deer file number, not the one for the Edmonton court. In it I found paperwork that was not in the other file. Among these additional documents were the items I believe were improperly attached to the MEP officer’s filings that I described earlier.
· 1971 David’s Birth
· 1990 Brother died (October)
· 1995 Wedding (August)
· 1996 Condo purchased (August)
· 1996 Birth of son (November)
· 1996 Work began on the rigs
· 1998 Father passed away (September)
· 2000 Bankruptcy
· 2000 Daughter born (March)
· 2000 Discharged from Bankruptcy
· 2001 Father-in-law passed away
· 2001 Sold Condo (September)
· 200l Bought new home in [Town X] (September)
· 2003 Discharged from Rehab (June)
· 2003 Trip to Cub a
· 2003 Marriage breakup (November)
· 2004 Ex-Parte Order [Justice X] (January)
· 2004 Statement of Claim for Divorce
· 2004 Wife’s Affidavit –Letter from McIiwain June 11,2003- expenses- Registration truck- RRSP’s
· 2004 David hired second lawyer
· 2004 Notice to Disclose finances from Wife (February)
· 2004 Consent Matrimonial Property Order
· 2004 Alice’s affidavit (January)
· 2004 Payments registered with MEP (April)
· 2005 Sale of [Town X] home (September 1)
· 2005 Ex-Parte Order( September)
· 2005 Alice’s second affidavit (September)
· 2005 Divorce Hearing October 19
· 2006 Emergency room (March)
· 2006 Notice of Motion May 23 by David’s second lawyer
· 2006 David’s affidavit (July 20)
· 2007 Agreement with MEP (January)
· 2007 Wages guarnisheed (31 January)
· 2007 The MEP officer’s Affidavit (March l8)
· 2007 MEP’s Order to Compel (March 27)
· 2007 MEP lawyer’s letter to court (May 30)
· 2007 Parenting After Separation Course (May 12)
· 2007 Court hearing to recalculate support (June 6)
· 2007 Order from this court session filed (September 18)
· 2007 The MEP officer’s Affidavit (October 22)
· 2007 License suspended (August 21)
· 2007 License cancelled (September 24)
· 2007 Warrant issued (November 23)
· 2007 David’s second lawyer ceased to act for him (October 12)
· 2007 Letter from MEP on June 6 Hearing, to change David’s payments.
· 2007 Access to children refused (December 24)
· 2008 Arrested (January 16)
· 2008 Court hearing to imprison David (January 17)
· 2008 Financial Exam (January 23)
· 2008 Court Hearing concerning David’s release from jail (January 31)
· 2008 Agreement with MEP for David to be released (January 31)
· 2008 Financial Exam (April 08)
· 2008 License reinstated for 1 Year (February 4)
· 2008 Affidavit by David (August)
· 2008 License cancelled (October 17)
· 2008 License suspended for 21 days (October 17)
· 2008 Default Hearing adjourned to June 12 (April 10)
· 2008 Warrant for arrest vacated June 12
· 2008 Hearing adjourned to September 11(June 12)
· 2008 Request from MEP for finances (September 18)
· 2008 Request from MEP for finances (October 03)
· 2008 Death (November 22)
· 2008 Letter of condolence requesting money from MEP (January 29)
· 2009 MEP served Justice Canada (April 11)
· 2009 Letter from Justice Canada (April 15)